ENVIRONMENTAL CODE
ENVIRONMENTAL CODE
With the cooperation of Michael Faure Professor of Comparative and International Environmental Law and Academic Director of METRO, the Institute for Transnational Legal Research of the Universiteit Maastricht.
BOOK I Common provisions Articles L121-1 to
L110-2 Article L110-1 (Act no. 2002-276 of 27 February 2002 Article 132 Official Journal of 28 February 2002)
I. - Natural areas, resources and habitats, sites and landscapes, air quality, animal and plant species, and the biological diversity and balance to which they contribute are part of the common heritage of the nation.
II. - Their protection, enhancement, restoration, rehabilitation and management are of general interest and contribute to the objective of sustainable development which aims to satisfy the development needs and protect the health of current generations without compromising the ability of future generations to meet their own needs. They draw their inspiration, within the framework of the laws that define their scope, from the following principles:
1° The precautionary principle, according to which the absence of certainty, based on current scientific and technical knowledge, must not delay the adoption of effective and proportionate measures aiming to prevent a risk of serious and irreversible damage to the environment at an economically acceptable cost;
2° The principle of preventive and corrective action, as a priority at source, of damage to the environment, using the best techniques available at an economically acceptable cost;
3° The polluter pays principle, according to which the costs arising from measures to prevent, reduce or combat pollution must be borne by the polluter;
4° The principle of participation, according to which everybody has access to information relating to the environment, including information relating to hazardous substances and activities, and whereby the public is involved in the process regarding the development of projects that have a major impact on the environment or on town and country planning.
Article L110-2 The laws and regulations organise the individual's right to a healthy environment and contribute to ensuring a
harmonious balance between urban zones and rural zones. Each person has a duty to safeguard and to contribute to the protection of the environment. Public bodies and private bodies must, in all their activities, comply with the same requirements.
TITLE I General principles
TITLE II Information and participation of citizens Articles L121-1 to
L126-1
CHAPTER I Public participation in the drawing up of development or infrastructure projects
having a major impact on the environment or Town and Country planning Articles L121-1 to L121-15
SECTION I Role of the National Public Debate Commission - Scope and purpose of public
debate Articles L121-1 to L121-2
Article L121-1 (Act no. 2002-276 of 27 February 2002 Article 134 Official Journal of 28 February 2002)
The National Public Debate Commission, an independent administrative authority, is responsible for ensuring the respect of the principle of public participation in the development of town and country planning or infrastructure projects of national interest of the State, local authorities, public establishments and private bodies, falling within categories of operations listed by Conseil d'Etat (the highest administrative court in France) decree, as soon as these projects are socioeconomically significant or have significant impacts on the environment or on town and country planning.
Public participation may take the form of a public debate. This debate covers the suitability, the objectives and the principal characteristics of the project.
Public participation is ensured throughout the entire development phase of a project, from the undertaking of preliminary studies through to the end of the public enquiry carried out as required by Chapter III of Title II of Book 1 of the present code or of Chapter I of Title I of the Code de l'expropriation pour cause d'utilité publique.
In addition, the National Public Debate Commission ensures the upkeep of good conditions for informing the public
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ENVIRONMENTAL CODE throughout the implementation phase of the projects referred to it, up to the receipt of equipment and works.
This Commission advises the competent authorities and any developer, at their request, on any question relating to dialogue with the public throughout the development of the project.
The National Public Debate Commission is also entrusted with the role of issuing all and any opinions and recommendations of a general or methodological nature likely to encourage and develop dialogue with the public.
The National Public Debate Commission and individual commissions do not comment on the substance of the projects submitted to them.
Article L121-2 (Act no. 2002-276 of 27 February 2002 Article 134 Official Journal of 28 February 2002)
The provisions of the present Chapter are not applicable to town-planning documents and planning operations provided for by Book III of the Code de l'urbanisme. However, they may apply to certain investment projects of which the list is set by a Conseil d'Etat decree.
When the public debate is organised under the conditions provided by this Chapter, the provisions of Article L. 300-2 of the Code de l'urbanisme are not applicable.
SECTION II Composition and operation of the National Public Debate Commission Articles L121-3 to
L121-7
Article L121-3 (Act no. 2002-276 of 27 February 2002 Article 134 Official Journal of 28 February 2002)
The National Public Debate Commission is composed of twenty-one members appointed for five years or for the duration of their term in office. Besides its President and two Vice Presidents, it comprises:
1° One Member of Parliament and one Senator appointed respectively by the President of the National Assembly and by the President of the Senate;
2° Six local councillors appointed by decree following a proposal by the associations representing the councillors concerned;
3° One member of the Conseil d'Etat, elected by the General Assembly of the Conseil d'Etat; 4° One member of the Cour de cassation, elected by the General Assembly of the Cour de cassation; 5° One member of the Cour des comptes, elected by the General Assembly of the Cour des comptes; 6° One member from the body of members of the administrative courts and the administrative appellate courts,
appointed by decree following a proposal by the Higher Council of administrative courts and administrative appellate courts;
7° Two representatives of associations for the protection of the environment as approved under Article L. 141-1, exercising their activity on the French national territory as a whole, appointed by decree by the Prime Minister following a proposal by the Minister for the Environment;
8° Two representatives of consumers and users, appointed respectively by decree by the Prime Minister following a proposal by the Minister for the Economy and by the Minister for Transport;
9° Two qualified persons, one of whom has exercised functions as a commissaire enquêteur, respectively appointed by decree by the Prime Minister following a proposal by the Minister for Industry and the Minister for Town and Country Development.
The President and Vice-Presidents are appointed by decree. The term of office of the members is renewable once. The President and Vice-Presidents exercise their functions on a full time basis and receive remuneration. The functions of other members allow them to receive an allowance.
Article L121-4 (Act no. 2002-276 of 27 February 2002 Article 134 Official Journal of 28 February 2002)
The Commission may benefit from serving civil servants put at its disposal. It may recruit contractual agents for operational needs.
Article L121-5 (Act no. 2002-276 of 27 February 2002 Article 134 Official Journal of 28 February 2002)
Members of the National Commission and the individual commissions may not participate in a debate or dialogue procedure relating to an operation if they have a personal interest in this operation or have functions preventing them from doing so.
Article L121-6 (Inserted by Act no. 2002-276 of 27 February 2002 Article 134 Official Journal of 28 February 2002)
The budget required for the running of the National Public Debate Commission is included in the general State budget following a proposal by the Prime Minister. The President of the Commission authorises expenditure. He/she has authority regarding services.
The provisions of the Law of 10 August 1922 relating to the organisation of the control of expenses do not apply to the expenditure of the Commission.
Article L121-7 (Inserted by Act no. 2002-276 of 27 February 2002 Article 134 Official Journal of 28 February 2002)
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ENVIRONMENTAL CODE Each year, the National Public Debate Commission writes up a report summarising its activity. This report is given
to the Government and to the Parliament. The report is made public.
SECTION III Organisation of public debate Articles L121-8 to
L121-15
Article L121-8 (Inserted by Act no. 2002-276 of 27 February 2002 Article 134 Official Journal of 28 February 2002)
I. - The National Public Debate Commission is referred to for all infrastructure and town and country planning projects which, by their nature, their technical characteristics or their budgeted cost, insofar as it can be assessed in the development phase, meet the criteria or exceed the thresholds set by a Conseil d'Etat decree.
The developer or the public body responsible for the project submits to the Commission a file presenting the objectives and main characteristics of the project, including its social and economical impacts, the estimated cost, and an identification of the significant impacts of the project on the environment or on town and country planning.
II. - In addition, projects belonging to the categories defined in application of I but for which the budgeted cost is lower than the threshold set out in application of I, and which meet the technical criteria or go beyond the thresholds set by a Conseil d'Etat decree for each type of project, are made public by their developer or by the public body responsible for the project, who publishes their objectives and main characteristics.
In these cases, the developer or the public body responsible for the project and ten Members of Parliament may refer the project to the Commission; it may also be referred to by a body with territorial interest such as a Regional Council, a General Council, a Local Council, a Municipal Council or a public body dealing with inter-commune cooperation having competence in town and country planning management, or by one of the approved associations for the protection of the environment mentioned in Article L. 141-1 exercising their activity over the whole of the French national territory. This referral takes place within two months from the time when these projects are made public by the developer.
The developer submits a file to the National Public Debate Commission compiled in accordance with the second paragraph of I.
Article L121-9 (Inserted by Act no. 2002-276 of 27 February 2002 Article 134 Official Journal of 28 February 2002)
When the National Public Debate Commission is required to assume its role under Article L. 121-8, the Commission determines the terms of participation of the public in the decision-making process, under the following conditions:
I. - For each project, the Commission assesses whether a public debate must take place, based on the national interest of the project, its territorial influence, the socioeconomic issues relating to it, and its impacts on the environment or on town and country planning.
If the Commission believes that a public debate is necessary, it may either organise this debate itself, in which case it entrusts its coordination to an individual commission that it sets up for this purpose, or entrust the organisation of the debate to the developer or the public body responsible for the project. In this case, it defines the methods of organisation of the debate and ensures it runs smoothly.
If the Commission believes that a public debate is not necessary, it may recommend to the developer or the public body responsible for the project that a dialogue be organised in accordance with the methods that it proposes.
II. - The National Public Debate Commission decides within two months on the action to be taken following the referrals set out in I and II of Article L. 121-8.
It decides on the requests for a debate referred to it under Article L. 121-8 following a reasoned decision. In the absence of an explicit decision within this time limit, the Commission is considered to have decided against a
public debate or entrusted its organisation to the developer or the public body responsible for the project. III. - The costs relating to the material organisation of a public debate are to be borne by the developer or the public
body responsible for the project. However, the cost of supplementary assessments is to be borne by the National Public Debate Commission.
Article L121-10 (Inserted by Act no. 2002-276 of 27 February 2002 Article 134 Official Journal of 28 February 2002)
The Minister for the Environment, in conjunction with the Minister concerned, may call upon the National Public Debate Commission with a view to organising a public debate about general options regarding the environment or town and country planning.
Article L121-11 (Inserted by Act no. 2002-276 of 27 February 2002 Article 134 Official Journal of 28 February 2002)
The National Public Debate Commission draws up and publishes the calendar for the public debate, the duration of which may not exceed four months. This duration may be extended by two months by a reasoned decision of the National Public Debate Commission.
The National Public Debate Commission may ask the developer or the public body responsible to complete the file required for public debate. In this case, the time limit stipulated in the previous paragraph does not come into force until the complete file has been received by the National Public Debate Commission.
Within two months from the date on which the public debate closes, the President of the National Public Debate Commission publishes the minutes of the debate and makes a report on it.
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ENVIRONMENTAL CODE Article L121-12 (Inserted by Act no. 2002-276 of 27 February 2002 Article 134 Official Journal of 28 February 2002)
Regarding projects falling within the scope of Article L. 121-8, there cannot be a decision to open the public enquiry stipulated by Article L. 123-1 until either the date from which a public debate may no longer be organised, or the date of publication of the report, or upon expiry of the time limit granted to the President of the National Public Debate Commission to proceed with this publication, and at the latest within a period of five years following these dates. Once this period has come to an end, the Commission may only decide to re-launch dialogue with the public if the factual and legal circumstances justifying the project have undergone substantial modifications.
Article L121-13 (Inserted by Act no. 2002-276 of 27 February 2002 Article 134 Official Journal of 28 February 2002)
When a public debate has been organised on a project, the developer or the public body responsible for the project decides, within a period of three months following publication of the report on the public debate and by means of a published notice, on the principle and the conditions of the continuation of the project. Where necessary, he or she specifies the principal modifications made to the project submitted for public debate. This notice is sent to the National Public Debate Commission.
When the developer or the public body responsible for the project is a local authority, this notice gives rise to a deliberation.
Article L121-14 (Inserted by Act no. 2002-276 of 27 February 2002 Article 134 Official Journal of 28 February 2002)
No irregularity with regard to the provisions of the present Chapter may be invoked when the notice by which the National Public Debate Commission has opted not to organise a public debate or the notice mentioned in Article L. 121-13 has become final.
Article L121-15 (Inserted by Act no. 2002-276 of 27 February 2002 Article 134 Official Journal of 28 February 2002)
A Conseil d'Etat decree specifies the conditions of application of the present Chapter.
CHAPTER II Environmental evaluation Articles L122-1 to
L122-11
SECTION I Impact studies Articles L122-1 to
L122-3
Article L122-1 (Act no. 2002-276 of 27 February 2002 Article 147 I Official Journal of 28 February 2002) (Order no. 2004-489 of 3 June 2004 Article 1 I, II Official Journal of 5 June 2004) (Act no. 2005-1319 of 26 October 2005 Article 1 Official Journal of 27 October 2005)
The town and country planning works or projects undertaken by a public authority or requiring authorisation or approval, along with the town planning documents, must respect environmental concerns.
Studies carried out prior to the implementation of town and country planning works or of construction works which may harm the natural environment by their dimensions or by their impact, must include an impact study enabling the assessment of their impacts. This impact study is sent for assessment to the competent State administrative authority in environmental matters by the authority responsible for authorising or approving these planning works or these construction works.
Without prejudice to the requirements of Articles L. 11-1-1 of the Code de l'expropriation pour cause d'utilité publique or L. 126-1 of this Code, relating to the reasoning of declarations of public utility and project declarations, as soon as a decision granting or refusing authorisation for the project submitted to the impact study has been made, the competent authority informs the public and, subject to the respect of national defence secrecy, puts the following information at the public's disposal:
- the content of the decision and the conditions attached to it, if applicable; - the reasons behind the decision; - the places where the impact study is available for consultation and, if applicable, the principal measures required
to prevent, minimise, and, if possible, compensate for the major negative effects of the project.
Article L122-2 (Order no. 2000-914 of 18 September 2000 Article 12 1° Official Journal of 21 September 2000 in force on 1st January 2001) (Order no. 2004-489 of 3 June 2004 Article 1 I, II Official Journal of 5 June 2004)
If a request, submitted to the administrative jurisdiction, against the authorisation or approval of a project as indicated in the second paragraph of Article L. 122-1 is based on the absence of an impact study, the juge des référés, when requested to suspend the challenged decision, grants the request as soon as this absence is noted.
Article L122-3 (Act no. 2002-276 of 27 February 2002 Article 147 II Official Journal of 28 February 2002)
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ENVIRONMENTAL CODE (Order no. 2004-489 of 3 June 2004 Article 1 I, II Official Journal of 5 June 2004) (Act no. 2005-1319 of 26 October 2005 Article 1 Official Journal of 27 October 2005)
I. - A Conseil d'Etat decree stipulates the methods of application of this Chapter. II. - It sets, in particular: 1° The conditions under which environmental concerns are addressed within the existing regulatory procedures; 2° The content of the impact study, which contains as a minimum an analysis of the initial state of the site and its
environment, a study of the modifications that the project would bring about, a study of its effects on health, and the measures envisaged to eliminate, minimise and, if possible, compensate for harmful consequences on the environment and health; in addition, for transport infrastructures, the impact study contains an analysis of the costs at community level resulting from pollutions and nuisances and the advantages induced for the community, along with an evaluation of the energy consumption resulting from the operation, particularly from the traffic movements that it causes or prevents;
3° The conditions under which the impact study along with the principal measures designed to prevent, minimise and, if possible, compensate for the major negative effects of the project are made public;
4° The restrictive list of works which, owing to their limited effect on the environment, are not subject to the impact study procedure;
5° The conditions under which the Minister for the environment may call or be called upon to express his/her opinion, for any impact study.
III It appoints the administrative authority referred to for its assessment in accordance with article L. 122-1 and determines the conditions under which this assessment is elaborated and placed at the disposal of the public.
SECTION II Evaluation of certain plans and documents having a notable effect on the
environment Articles L122-4 to L122-11
Article L122-4 (Inserted by Order no. 2004-489 of 3 June 2004 Article 1 IV Official Journal of 5 June 2004)
I. The plans, diagrams, schedules and other planning documents featuring on a list set by a Conseil d'Etat decree and which, without authorising the works or prescribing town and country planning works, are applicable to the performance of such works or projects, must be subject to an environmental evaluation under the conditions set out by the present section.
Such an evaluation must include: 1 The plans, diagrams, schedules and other planning documents adopted by the State, the local authorities or their
groupings and the public establishments which depend on them, relating to agriculture, forest management, fishing, energy or industry, transport, waste management or water management, telecommunications, tourism or town and country planning, the purpose of which is to set recommendations or orientations with which the works and planning projects entering the field of application of the impact study must be compatible, in accordance with article L. 122-1;
2 The plans, diagrams, schedules and other planning documents adopted by the State, the local authorities or their groupings and the public establishments which depend on them, other than those mentioned in 1 of the present article, the purpose of which is to set recommendations or orientations with which the works and planning projects must be compatible if they are likely to have notable effects on the environment.
The list of documents mentioned in 2 is drawn up taking into account the nature of the works or projects to which they are applicable and the sensitivity of the environment in which they are to be performed.
II. The environmental evaluation of the plans, diagrams, schedules and other planning documents mentioned in articles L. 121-10 of the Code de l'Urbanisme and articles L. 4424-9 and L. 4433-7 of the Code Général des Collectivités Territoriales is governed by the provisions of articles L. 121-10 to L. 121-15 of the Code de l'Urbanisme.
III. The draft plans, diagrams, schedules and other planning documents which determine the use of small-surface territories are not submitted for the evaluation provided for by the present article unless their application is likely to have a notable effect on the environment, bearing in mind, notably, the sensitivity of the area, the purpose of the plan, or the content of the project.
IV. The plans and documents drawn up solely for the purposes of national defence or civil protection are not submitted for an environmental evaluation.
NB: See decree no. 2005-613 published in the Official Journal of 29 May 2005.
Article L122-5 (Inserted by Order no. 2004-489 of 3 June 2004 Article 1 IV Official Journal of 5 June 2004)
With the exception of those that are only of a minor nature, the modifications made to the plans and documents subject to the provisions of I of article L. 122-4 give rise either to a new environmental evaluation or to an update of the one made when they were drawn up.
Article L122-6 (Inserted by Order no. 2004-489 of 3 June 2004 Article 1 IV Official Journal of 5 June 2004)
The environmental evaluation includes the drawing-up of a report which identifies, describes and evaluates the notable effects which the implementation of the plan or document may have on the environment. This report presents the measures provided for to reduce and, where possible, to compensate for the notable negative effects that the application of the plan may cause to the environment. It sets out the other solutions envisaged and the reasons, notably from the point of view of environmental protection, why the project has been selected.
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ENVIRONMENTAL CODE The environmental report contains the information which may reasonably be demanded, bearing in mind the
knowledge and evaluation methods that exist on the date of drawing-up or revision of the plan or document, its content and its degree of precision and, where applicable, the existence of other documents or plans relating to all or part of the same geographical zone, or environmental evaluation procedures planned for a later stage.
Article L122-7 (Inserted by Order no. 2004-489 of 3 June 2004 Article 1 IV Official Journal of 5 June 2004)
The public entity responsible for drawing up a plan or a document submits to the competent State administrative authority in environmental matters for its assessment:
- either the draft plan or document drawn up in accordance with article L. 122-4, accompanied by the environmental report;
- or the reasoned decision not to carry out the environmental evaluation of a draft plan or document in accordance with III of article L. 122-4.
If it is not given within a period of three months, the opinion is considered as favourable. The competent State administrative authority in environmental matters is consulted, where needs be, on the degree
of accuracy of the information which the environmental report must contain.
Article L122-8 (Inserted by Order no. 2004-489 of 3 June 2004 Article 1 IV Official Journal of 5 June 2004)
The environmental report is made public before the adoption of the plan or the document. The draft plan or document and the environmental report to which are annexed, where applicable, the assessments
collected in accordance with article L. 122-7, are placed at the disposal of the public under the conditions set by a Conseil d'Etat decree.
When the draft plan or document is subject to a public enquiry, this enquiry replaces the placing at the disposal of the public within the meaning assigned by the present article.
Article L122-9 (Inserted by Order no. 2004-489 of 3 June 2004 Article 1 IV Official Journal of 5 June 2004)
The draft plans or documents the implementation of which is likely to produce notable effects on the environment of another member State of the European Community are transmitted to the authorities of this State, at the request of those authorities or at the initiative of the French authorities. The State concerned is invited to give its opinion within the period set by a Conseil d'Etat decree. In the absence of a response within this period, the opinion is considered as given.
When a draft plan or document the implementation of which is likely to produce notable effects on the national territory is sent for assessment to the French authorities by another State, it may be decided to consult the public on the project.
Article L122-10 (Inserted by Order no. 2004-489 of 3 June 2004 Article 1 IV Official Journal of 5 June 2004)
I. When the plan or document has been adopted, the authority which has ruled upon it informs the public, the competent State administrative authority in environmental matters and, where applicable, the authorities of the other consulted member States of the European Community. It places the following information at their disposal:
1 The plan or the document; 2 A declaration summarising: - the way in which account was taken of the report drawn up in accordance with article L. 122-6 and the
consultations carried out; - the reasons for the choices set out by the plan or the document, bearing in mind the various solutions envisaged; - the measures destined to evaluate the effects on the environment of the implementation of the plan or document. II When a draft plan or document has not been subject to an environmental evaluation in accordance with III of
article L. 122-4, the authority responsible for drawing it up informs the public of the reasons for this decision.
Article L122-11 (Inserted by Order no. 2004-489 of 3 June 2004 Article 1 IV Official Journal of 5 June 2004)
The conditions of application of the present section for each category of plan or document are specified, where needs be, by a Conseil d'Etat decree.
CHAPTER III Public enquiries relating to operations likely to affect the environment Articles L123-1 to
L123-16
SECTION I Scope and purpose of the public enquiry Articles L123-1 to
L123-3
Article L123-1 (Act no. 2002-276 of 27 February 2002 Article 138 Official Journal of 28 February 2002)
I - The implementation of developments, structures or works executed by public or private bodies is preceded by a public enquiry governed by the stipulations of this Chapter when, owing to their nature, their make-up or the character of
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ENVIRONMENTAL CODE the zones concerned, these operations are likely to affect the environment. The list of the categories of operations mentioned in the previous paragraph and the technical thresholds and criteria used to define them are set by decrees approved by the Conseil d'Etat. These thresholds or criteria may be varied in order to take account of the sensitivity of the environment and of the zones benefiting from legislative or regulatory protection.
II - The decision to open a public enquiry on the project of a local authority, a group of local authorities or one of the public establishments falling under these authorities is made by the President of the decision-making body of the authority or establishment. However, when the enquiry takes place prior to a declaration of public utility, the decision is made by the competent State authority.
Article L123-2 When the laws and regulations subject the approval of town and country planning documents or the operations
mentioned in L. 123-1 to a particular public enquiry procedure, the rules governing these enquiries remain applicable as long as they are not contrary to the provisions of this Chapter.
The works carried out in order to prevent a serious and immediate hazard are excluded from the scope of this Chapter.
Article L123-3 The purpose of the enquiry described in Article L. 123-1 is to inform the public and to collect its opinions,
suggestions and counter-proposals following the impact study when this study is required, in order to give the competent authority all the information it requires.
SECTION II Procedure and course of the public enquiry Articles L123-4 to
L123-16
Article L123-4 The enquiry mentioned in Article L. 123-1 is conducted, according to the nature and scale of the operations, by a
commissaire enquêteur or an enquiry commission appointed by the President of the administrative tribunal or by the tribunal member delegated by the President for this purpose.
A list of suitable candidates is drawn up for each département by a commission chaired by the President of the administrative tribunal or by the magistrate delegated by the President. This list is made public and is revised at least once a year.
The President of the administrative tribunal appoints the commissaire enquêteur or the members of the enquiry commission from among the people on the list of suitable candidates. His/her choice is not limited to the lists of the départements included in the jurisdiction of the tribunal.
Article L123-5 On the request of the commissaire enquêteur or the President of the enquiry commission and when the specific
nature of the enquiry demands it, the President of the administrative tribunal or the magistrate he/she has delegated may appoint an expert to assist the commissaire enquêteur or the President of the enquiry commission. The cost of this expertise is borne by the developer.
Article L123-6 Commissaires enquêteurs or members of the enquiry commission may not be appointed if they have a personal
interest in the operation or have functions preventing them from being appointed, notably if those functions are performed within the authority, body or department in charge of the project development, the project supervision or the control of the operation concerned by the enquiry.
The provisions of the previous paragraph may be extended, under the conditions set by a Conseil d'Etat decree, to persons who have held these functions.
Article L123-7 At least fifteen days before the enquiry is opened and throughout its duration, the competent authority informs the
public by all appropriate means, notably in the places concerned by the enquiry and, according to the scale and nature of the project, via the written press or by audiovisual communication, of the purpose of the enquiry, the names and capacities of the commissaire enquêteur or the members of the enquiry commission, the date on which the enquiry is opened, the place of the enquiry and its duration.
The duration of the enquiry must not be less than one month. By a reasoned decision, the commissaire enquêteur or the President of the enquiry commission may prolong the
enquiry for a maximum period of fifteen days.
Article L123-8 Notwithstanding the provisions of Title I of Act no. 78-753 of 17 July 1978 on various measures for the improvement
of relations between the administration and the public and various administrative, social and fiscal provisions, the public enquiry file can be sent to the environmental protection associations approved under Article L. 141-1, at their own cost.
Article L123-9 (Act no. 2002-276 of 27 February 2002 Article 141 Official Journal of 28 February 2002) (Act no. 2003-699 of 30 July 2003 Article 1 Official Journal of 31 July 2003)
The commissaire enquêteur or the President of the enquiry commission conducts the enquiry in such a way as to
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ENVIRONMENTAL CODE enable the public to be fully aware of the project and to present its opinions, suggestions and counter-proposals.
He/she receives the developer of the operation concerned by the public enquiry. He/she may receive all documents, visit the sites concerned, except for places of residence, after the competent
authority has informed the owners and the occupants, hear all persons that he/she considers useful to hear, and convene the developer or his/her representatives as well as the interested administrative authorities.
Under his/her presidency, he/she may organise a meeting in order to provide and exchange information with the public in the presence of the developer. When the public enquiry relates to a request for authorisation concerning an establishment featuring on the list in IV of Article L. 515-8, this meeting is compulsory on the request of the mayor of the commune in which the facility will be located, or of the President of a public establishment for inter-commune cooperation competent in the field of economic development or town and country planning, the perimeter of which includes the territory of the commune on which the establishment will be installed (NB).
Subject to the provisions of Article L. 123-15, the developer communicates to the public the existing documents that the commissaire enquêteur or the President of the enquiry commission deems useful to inform the public correctly. In the event that the developer refuses to communicate these documents, his/her reasoned response is included in the enquiry file.
The commissaire enquêteur or the enquiry commission is available to meet people or representatives of associations who request to be heard.
NB: Act no. 2003-699 Article 81 I: This provision does not apply to enquiries opened prior to the publication of Act no. 2003-699.
Article L123-10 The report and reasoned conclusions of the commissaire enquêteur or the enquiry commission are made public.
The report must indicate the counter-proposals produced during the enquiry as well as any responses by the developer, particularly with regard to documentation requests made to him/her.
Article L123-11 When an operation dependent on an administrative authorisation is submitted for a public enquiry governed by this
Chapter, this authorisation may only result from an explicit decision.
Article L123-12 (Order no. 2000-914 of 18 September 2000 Article 12 2° Official Journal of 21 September 2000 in force on 1st January 2001)
The administrative juge des référés, called upon to suspend a decision made following unfavourable conclusions by the commissaire enquêteur or the enquiry commission, grants this request if, as its stands, it includes grounds for serious doubt as to the legality of this decision.
The provisions of the previous paragraph also apply when a decision has been made without the public enquiry required having taken place.
Any project of a local authority or a group of local authorities that has resulted in unfavourable conclusions by the commissaire enquêteur or the enquiry commission must be deliberated by the decision-making body of the authority or group concerned.
Article L123-13 If the developments or works that have been submitted for a public enquiry have not been undertaken within five
years following the decision, a new enquiry must be conducted unless an extension of five years has been decided upon before this period expires under conditions set by a Conseil d'Etat decree.
This Article does not preclude the application of more restrictive provisions set out by the regulations specific to each operation.
Article L123-14 (Act no. 2002-276 of 27 February 2002 Article 142 Official Journal of 28 February 2002)
The developer must bear the costs of the enquiry, notably the remuneration of the commissaires enquêteurs and the members of the enquiry commissions, as well as the costs relating to the material means required for the organisation and running of the enquiry procedure put at the disposal of the commissaire enquêteur or the enquiry commission.
When requested to do so by the commissaire enquêteur or the President of the enquiry commission, the President of the administrative tribunal or the magistrate that he/she has delegated for this purpose orders the developer to pay an advance, the amount of which is set by the President of the administrative tribunal or the magistrate. The public enquiry may not be opened until this advance has been paid.
A Conseil d'Etat decree sets out the conditions under which, with the aim of guaranteeing the independence of the commissaires enquêteurs and the members of the enquiry commissions, the rules are set for their remuneration and for the methods of payment of the corresponding sums by the developers.
Article L123-15 The enquiry must be conducted in compliance with national security, commercial confidentiality, and all confidential
matters protected by the law.
Article L123-16 The terms of application of this Chapter, notably the maximum time limits and the conditions governing the dates
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ENVIRONMENTAL CODE and times of the enquiry, are set by decrees approved by the Conseil d'Etat.
CHAPTER IV Right to access to information about the environment Articles L124-1 to
L124-8
Article L124-1 (Order no. 2001-321 of 11 April 2001 Article 9 II Official Journal of 14 April 2001) (Order no. 2001-321 of 11 April 2001 Article 9 III Official Journal of 14 April 2001) (Act no. 2005-1319 of 26 October 2005 Article 2 Official Journal of 27 October 2005)
The right of any person to have access to information about the environment held, received or drawn up by the public authorities mentioned in article L. 124-3 or on their behalf is exercised under the conditions defined by the provisions of Title I of Act no. 78-753 of 17 July 1978 covering various measures for the improvement of relations between the administration and the public and various administrative, social and fiscal provisions, subject to the provisions of the present chapter.
Article L124-2 (Order no. 2001-321 of 11 April 2001 Article 9 II Official Journal of 14 April 2001) (Act no. 2005-1319 of 26 October 2005 Article 2 Official Journal of 27 October 2005)
Considered as information about the environment under the terms of the present chapter is any information available, irrespective of the medium, the subject of which is:
1 The state of environmental elements, notably the air, the atmosphere, the water, the soil, the land, landscapes, natural sites, coastal or marine zones and biological diversity, as well as the interaction between these elements;
2 The decisions, activities and factors, notably substances, energy, noise, radiation, waste, emissions, spills and other waste likely to have effects on the state of the elements described in 1;
3 The state of human health, safety and the living conditions of people, constructions and cultural heritage, providing that they can be altered by environmental elements, the decisions, activities or factors mentioned above;
4 The analyses of costs and advantages as well as the economic hypotheses used in the framework of the decisions and activities described in 2;
5 The reports drawn up by the public authorities or on their behalf on the application of the legislative and regulatory provisions relating to the environment.
Article L124-3 (Order no. 2001-321 of 11 April 2001 Article 9 II Official Journal of 14 April 2001) (Act no. 2005-1319 of 26 October 2005 Article 2 Official Journal of 27 October 2005)
Any person who so requests receives information relating to the environment held by: 1 The State, the local authorities and their groupings, the public establishments; 2 The persons responsible for a public service assignment relating to the environment, providing that this
information concerns the fulfilment of this assignment. The bodies or institutions acting to exercise jurisdictional or legislative powers are not subject to the provisions of
the present chapter.
Article L124-4 (Order no. 2001-321 of 11 April 2001 Article 9 II Official Journal of 14 April 2001) (Act no. 2005-1319 of 26 October 2005 Article 2 Official Journal of 27 October 2005)
I. After assessing the interest of a communication, the public authority may reject the request for information relating to the environment if the consultation or communication interferes with:
1 The interests mentioned in article 6 of abovementioned Law no.78-753 of 17 July 1978, except for those described in the sixth and last paragraphs of I of that article;
2 The protection of the environment to which it relates; 3 The interests of the person who, without being constrained by a legislative or regulatory provision or by an act of
an administrative or jurisdictional authority, has provided the information requested without agreeing to its divulgation; 4 The protection of information provided for by article 6 of Law no.51-711 of 7 June 1951 covering obligations,
coordination and secrecy regarding statistics. II. Subject to the provisions of II of article L. 124-6, it may also reject: 1 A request bearing on documents in the process of being drawn up; 2 A request bearing on information that it does not hold; 3 A request formulated in too general a manner.
Article L124-5 (Inserted by Act no. 2005-1319 of 26 October 2005 Article 2 Official Journal of 27 October 2005)
I. When a public authority receives a request bearing on information relating to the factors mentioned in 2 of article L. 124-2, it indicates to its author, if the author so requests, the address where the author may be informed about the processes and methods used to elaborate the data.
II. The public authority may only reject a request for information relating to the emissions of substances into the environment if such a consultation or communication interferes with:
1 The conducting of French foreign policy, public security, or national defence;
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ENVIRONMENTAL CODE 2 The running of jurisdictional procedures or the search for infringements which may give rise to criminal sanctions; 3 Intellectual property rights.
Article L124-6 (Inserted by Act no. 2005-1319 of 26 October 2005 Article 2 Official Journal of 27 October 2005)
I. The rejection of a request for information relating to the environment is notified to the requester in writing, by means of a reasoned decision specifying the methods and deadlines for recourse. Article 5 of Law no.79-587 of 11 July 1979 relating to the reasoning behind administrative acts and the improvement of relations between the administration and the public does not apply.
II. When this rejection is based on 1 of II of article L. 124-4, this decision indicates the period within which the document will be completed, as well as the public authority responsible for drawing it up.
When this rejection is based on 2 of II of article L. 124-4, this decision indicates, where applicable, the public authority which holds this information.
A request may only be rejected on the basis of 3 of II of article L. 124-4 after the public authority has first invited the requester to make the request more specific and has helped the requester to do so.
Article L124-7 (Inserted by Act no. 2005-1319 of 26 October 2005 Article 2 Official Journal of 27 October 2005)
I. The public authorities take measures to enable the public to know about their right to access the information about the environment that the authorities hold, and make sure that the public can have access to the information sought. For this purpose, they draw up directories or lists of categories of information about the environment in their possession, accessible free of charge and indicating the place where this information is at the disposal of the public.
II. The public authorities make sure that the information about the environment that they have collected or have had collected for them is precise and up to date and can enable comparison. They ensure that this information is conserved in such a way as to allow it to be disseminated in electronic form.
Article L124-8 (Inserted by Act no. 2005-1319 of 26 October 2005 Article 2 Official Journal of 27 October 2005)
A Conseil d'Etat decree, drawn up after an assessment by the commission for access to administrative documents, specifies the methods of application of the present chapter. It defines the categories of information about the environment which must be subject to public dissemination within a period that it sets. It determines the methods by which the State and the local authorities give the public access to the lists of public establishments and other entities mentioned in article L. 124-3 attached to them or under their control.
CHAPTER V Other modes of information Articles L125-1 to
L125-5
Article L125-1 (Inserted by Order no. 2001-321 of 11 April 2001 Article 9 I, II Official Journal of 14 April 2001)
I. - Each individual has the right to be informed about the harmful effects on human health and the environment of the collection, transport, treatment, storage and deposit of waste as well as about the measures taken to prevent or compensate for these effects.
II. - This right consists notably of: 1° The communication, by the operator of a waste disposal establishment, of the documents drawn up in the
framework of the provisions of Chapter I of Title I of Book V, in order to measure the effects of its activity on public health and the environment and to indicate the measures taken to eliminate or minimise the harmful effects of the waste;
2° The creation of a local commission for information and monitoring on any waste disposal or storage site, on the initiative of either the Préfet or the municipal council of the commune of the site concerned or a neighbouring commune; this commission is made up in equal parts of representatives of the public administrations concerned, the operator, the local authorities, and the environmental protection associations concerned; on the request of the commission, the Préfet, who chairs the commission, orders the inspection operations that the commission deems necessary for its works within the framework of Title I or Title IV (Chapter I) of Book V; the documents drawn up by the operator of a waste disposal establishment to measure the effects of its activity on public health and the environment are sent to the commission; the cost of setting up and running the local commission for information and supervision is borne by the group specified in Article L. 541-43, when this group exists; in the absence of such a group, these costs are borne equally by the State, the local authorities and the operator;
3° The drawing up, by the communes or the public establishments for inter-commune cooperation or the mixed syndicates specified in Article L. 2224-13 of the Code général des collectivités territoriales, and by the Préfets, of documents for the evaluation of the measures undertaken to dispose of the waste for which they are responsible; these documents can be consulted freely.
III. - A Conseil d'Etat decree defines the conditions under which this right is exercised. More specifically, it sets the terms according to which this information is brought to the attention of the public.
IV. - The provisions contained in this Article apply without prejudice to the provisions of Act no. 78-753 of 17 July 1978 covering various measures for the improvement of relations between the administration and the public and various administrative, social and fiscal provisions.
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ENVIRONMENTAL CODE Article L125-2 (Order no. 2001-321 of 11 April 2001 Article 9 I, II Official Journal of 14 April 2001) (Act no. 2003-699 of 30 July 2003 Article 2, Article 40 Official Journal of 31 July 2003) (Act no. 2001-811 of 13 August 2004 Article 102 II Official Journal of 17 August 2004)
Citizens have a right to information about the major risks to which they are subject in specific geographical areas and about the measures taken to safeguard them. This right applies to technological risks and to foreseeable natural disasters.
In the communes on the territory of which a plan for the prevention of foreseeable natural disasters has been prescribed or approved, the mayor informs the population at least once every two years, by means of public meetings or any other appropriate means, of the characteristics of the natural risk(s) known in the commune, the possible preventive and safeguarding measures, the provisions of the plan, the alert methods, the organisation of emergency procedures, the measures taken by the commune to manage the risk, and the guarantees provided for by Article L. 125-1 of the Code des assurances. This information is issued with the help of the competent State departments via elements brought to the knowledge of the mayor by the State representative in the département when the information concerns the measures undertaken in accordance with Act no. 2004-811 of 13 August 2004 for the modernisation of civil security, and does not cover the measures implemented by the mayor in accordance with Article L. 2212-2 of the Code Général des Collectivités Territoriales.
A Conseil d'Etat decree sets the conditions under which this right is exercised. It sets, notably, the terms under which the safeguarding measures are brought to public knowledge as well as the categories of sites on which the information is displayed.
The operator is obliged to participate in informing the public of the measures taken in the area surrounding the structures or installations concerned by a special contingency plan.
The Préfet sets up a local committee to provide and exchange information about risks for any industrial area containing one or more establishments featuring on the list in IV of Article L. 515-8. This committee may call on the skills of recognised experts, notably to carry out third-party expert assessments. It is kept informed of any incident or accident affecting the safety of the abovementioned establishments. It is given the means to perform its role by the State. The conditions of application of this paragraph, notably the rules governing the composition of the local committees for information and dialogue, are set by decree.
Article L125-3 (Inserted by Order no. 2001-321 of 11 April 2001 Article 9 I, II Official Journal of 14 April 2001)
Each individual has the right to be informed of the effects that the voluntary dissemination of genetically modified organisms as defined in Title III of Book V may have on public health or the environment, subject to respect of the confidentiality of information protected by the Law.
A Conseil d'Etat decree defines the terms under which the administrative authority informs the public about the effects that voluntary dissemination may have on public health or the environment. This decree also sets the obligations that may be imposed in this respect on the beneficiary of the authorisation, notably with regard to the payment of all or part of the corresponding costs.
Article L125-4 (Inserted by Order no. 2001-321 of 11 April 2001 Article 9 I, II Official Journal of 14 April 2001)
The right to information about air quality and its effects on health and the environment is granted to each individual on the whole of the territory. The State is the guarantor of this right, of the reliability of the information and of its dissemination. This right is exercised according to the terms defined in section 2 of Chapter I of Title II of Book II.
Article L125-5 (Act no. 2003-699 of 30 July 2003 Article 77 Official Journal of 31 July 2003) (Order no. 2005-655 of 8 June 2005 Article 21 Official Journal of 9 June 2005)
I. - The purchasers or lessees of real-estate properties in the zones covered by a plan for the prevention of technological risks or by a plan for the prevention of foreseeable natural disasters, either prescribed or approved, or in the zones of seismicity defined by a Conseil d'Etat decree, are informed by the vendor or the lessor of the existence of the risks indicated by this plan or this decree.
For this purpose, a natural and technological risk status report is written up based on the information made available by the Préfet. Should the building be put up for sale, the status report is produced under the conditions and according to the methods provided for in articles L. 271-4 and L. 271-5 of the Code de la Construction et de l'Habitation.
II. - In the event of the rental of the building, the natural and technological risk status report is provided to the new lessee under the conditions and according to the methods provided for in article 3-1 of Law no.89-462 of 6 July 1989 for the improvement of tenancy relationships and modifying Law no.86-1290 of 23 December 1986.
III. - The Préfet draws up the list of communes in which the provisions of I and II are applicable and, for each commune concerned, the list of risks and documents to be taken into account.
IV. - When a building has undergone a disaster giving rise to the payment of an indemnity in accordance with Article L. 125-2 or Article L. 128-2 of the Code des assurances, the vendor or lessor of the building is obliged to inform the purchaser or lessee in writing of any disaster that has occurred during the period in which he or she has been the owner of the building or of which he or she has been informed, in accordance with these provisions. If the building is sold, this information is mentioned in the deed of sale.
V. - If the provisions of this Article are not respected, the purchaser or the lessee may request that the contract be
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ENVIRONMENTAL CODE cancelled or ask the judge for the price to be reduced.
VI. - A Conseil d'Etat decree sets the conditions of application of this Article.
CHAPTER VI Project declaration Article L126-1
Article L126-1 (Inserted by Act no. 2002-276 of 27 February 2002 Article 144 Official Journal of 28 February 2002)
When a public project for works, developments or structures has been subject to a public enquiry in accordance with Chapter III of this Title, the State authority or the decision-making body of the local authority or the public establishment responsible for the project decides, via a project declaration, on the general interest of the projected operation.
The project declaration mentions the purpose of the operation as it appears in the file submitted for enquiry, and contains the reasons and considerations justifying its general interest. Where applicable, it indicates the nature of and the reasons for the main modifications which, without altering the economics of the project, are made to the project in the light of the results of the public enquiry.
If the project declaration does not take place within one year following the closure of the enquiry, the operation cannot be carried out without a new enquiry.
In the absence of a project declaration, no works authorisation may be issued. If the work has not commenced within five years following the publication of the project declaration, the declaration
becomes null and void. However, if there is no change to the factual or legal circumstances, this period can be renewed once for the same duration without a new enquiry by means of a project declaration taken in the same form as the initial declaration and issued before the expiry of the five-year period.
The project declaration is published under the conditions defined by a Conseil d'Etat decree.
TITLE III Institutions Articles L131-3 to
L132-2
CHAPTER I Institutions acting in the domain of environmental protection Articles L131-3 to
L131-8
SECTION I Environment and Energy Management Agency Articles L131-3 to
L131-7
Article L131-3 (Order no. 2004-637 of 1 July 2004 Article 27 I Official Journal of 2 July 2004)
I. - The Environment and Energy Management Agency is a public State establishment of an industrial and commercial nature.
II. - This public establishment carries out actions such as the strategic planning and coordination of research activities, service provisions, information and incitement, in each of the following areas:
1° The prevention and control of air pollution; 2° The minimisation of waste production, its disposal, its recovery and its reuse, the protection of soils and the
rehabilitation of polluted sites; 3° The redevelopment and supervision of a facility for the storage of final waste authorised after 14 July 1992, when
these operations become necessary owing to a failure by or insufficient guarantees provided by the operator; 4° Energy and raw materials savings and the development of renewable energy sources, particularly of plant origin; 5° The development of clean, economical technologies; 6° Noise abatement operations. III. - The Agency coordinates its actions with those conducted by the water agencies in areas of common interest. IV. - To carry out its tasks, the Agency has a delegation in each region.
Article L131-4 (Order no. 2004-637 of 1 July 2004 Article 27 I Official Journal of 2 July 2004)
The Board of Directors of the Agency is made up of: 1° State representatives; 2° Members of Parliament; 3° Representatives of local authorities; 4° Qualified persons, representatives of the environmental protection associations approved under Article L. 141-1,
and representatives of interested industrial boards; 5° Staff representatives under the conditions defined in paragraph two of Article 4 of Act no. 83-675 of 26 July 1983
relating to the democratisation of the public sector.
Article L131-5 (Order no. 2004-637 of 1 July 2004 Article 27 I Official Journal of 2 July 2004)
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ENVIRONMENTAL CODE The Agency has a scientific board, the composition of which is decided upon jointly by the Ministers for the
environment, research, and industry.
Article L131-6 (Order no. 2004-637 of 1 July 2004 Article 27 I Official Journal of 2 July 2004)
The Agency may attribute subsidies and repayable grant advances. It may collect fees, notably on the inventions and new processes to which it has contributed, fees for services
rendered, and the product of parafiscal taxes.
Article L131-7 (Order no. 2004-637 of 1 July 2004 Article 27 I Official Journal of 2 July 2004)
A Conseil d'Etat decree sets the conditions of application of Articles L. 131-3 to L. 131-6.
SECTION II Public interest groups in the domain of the environment Article L131-8
Article L131-8 (Order no. 2004-637 of 1 July 2004 Article 27 I Official Journal of 2 July 2004)
Public Interest Groups benefiting from incorporation status and financial autonomy may be set up between entities under public or private law including at least one legal entity under public law, in order to carry out together and for a fixed duration, activities in the domain of the environment, and to create or manage facilities, staff or services required for these activities.
The provisions of Article 21 of Act no. 82-610 of 15 July 1982 covering orientation and programming for technological research and development in France apply to these public interest groups. However, the director is appointed following advice from the Minister for the environment.
CHAPTER II Provisions common to certain institutions Articles L132-1 to
L132-2
Article L132-1 (Act no. 2003-591 of 2 July 2003 Article 31 III 2° Official Journal of 3 July 2003) (Act no. 2005-157 of 23 February 2005 Article 147 Official Journal of 24 February 2005)
The Environment and Energy Management Agency, the Coastal Protection Agency, the water agencies, the National Hunting and Wildlife Office and the National Monuments Centre may exercise the rights recognised as those of the civil party as regards the acts which directly or indirectly damage the interests that they have the role of defending and which constitute an infringement of the legislative provisions relating to the protection of nature and the environment, to the improvement of the living environment, to the protection of water, air, soils, sites and landscapes, and to town planning, or to those whose purpose is the control of pollution and nuisances, and of the enactments for their application.
Without prejudice to the indemnification for other damages suffered, the legal entities under public law mentioned in the previous paragraph which have taken part materially of financially, have a right to the reimbursement by the responsible parties of the expenses incurred by them.
The Chambers of Agriculture, the Regional Parks and the Regional Forest Ownership Committees may also exercise the rights recognised as those of the civil party under the conditions defined above.
Article L132-2 The representative farming and forestry syndicate organisations and the Chambers of Agriculture and the Regional
Forest Ownership Committees are called upon within the framework of the laws and regulations in force to participate in the environmental or country planning action of the public authorities, when this action pertains to rural areas.
TITLE IV Environmental protection associations Articles L141-1 to
L142-3
CHAPTER I Approval of environmental protection associations Articles L141-1 to
L141-2
Article L141-1 (Act no. 2005-157 of 23 February 2005 Article 148 Official Journal of 24 February 2005)
If they have been exercising their activities for at least three years, the properly declared associations that exercise their statutory activities in the field of nature protection and the management of wild fauna, the improvement of the living environment, water protection, air, soils, sites and landscapes, and town planning, or those whose purpose is the control of pollution and nuisances and, in general, those working principally for the protection of the environment, may be awarded approval by the administrative authority.
In the départements of the Bas-Rhin, the Haut-Rhin and the Moselle, the approval procedure applies to associations registered for at least three years.
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ENVIRONMENTAL CODE These associations are known as "approved environmental protection associations." This approval is granted under the conditions stipulated by a Conseil d'Etat decree. It may be withdrawn when the
association no longer fulfils the conditions required to grant it. The associations exercising their activities in the fields mentioned in the first paragraph above and approved prior to
3 February 1995 are considered as approved in accordance with this Article. The decisions made in accordance with this Article are subject to the procedures governing contentious matters.
Article L141-2 The environmental protection associations approved under Article L. 141-1 and the associations mentioned in
Article L. 433-2 are called upon, within the framework of the laws and regulations in force, to participate in the environmental action of public bodies.
CHAPTER II Legal action of the associations Articles L142-1 to
L142-3
Article L142-1 Any association the purpose of which is the protection of nature and the environment may institute proceedings
before the administrative tribunals for any grievance relating to this protection. Any environmental protection association approved under Article L. 141-1 is considered as being entitled to act
against any administrative decision with a direct relation to its purpose and its statutory activities and generating harmful effects on the environment on all or part of the territory for which it is approved.
Article L142-2 The approved associations mentioned in Article L. 141-2 may exercise the rights recognised as those of the civil
party with regard to acts which directly or indirectly damage the collective interests that they defend and which constitute an infringement of the legislative provisions relating to the protection of nature and the environment, to the improvement of the living environment, to the protection of water, air, soils, sites and landscapes, to town planning, or those whose purpose is the control of pollution and nuisances, and of the enactments for their application.
This right is also granted, under the same conditions, to the associations which have been lawfully declared for at least five years at the date of the acts and which, by their Articles, propose the safeguarding of all or part of the interests described in Article L. 211-1, in relation to the acts constituting an infringement of the provisions relating to water, or the interests described in Article L. 511-1, in relation to the acts constituting an infringement of the provisions relating to classified facilities.
Article L142-3 When, in the domains mentioned in Article L. 142-2, several identified persons have suffered individual damages
caused by the act of a single person and with a common origin, any association approved under Article L. 141-1 may, if it has been appointed by at least two of the persons concerned, seek redress before any tribunal on behalf of these persons.
The appointment may not be solicited. It must be given in writing by each person concerned. Any person who has given his or her agreement for an action to be brought before a criminal court is considered, in
this case, as exercising the rights recognised as those of the civil party, in accordance with the Code de procédure pénale. However, the notifications are addressed to the association.
The association which brings a legal action in accordance with the provisions of the previous paragraphs may claim for damages before the juge d'instruction or the tribunal having jurisdiction over the headquarters of the enterprise implicated or, failing this, of the place of the first infringement.
TITLE V Financial provisions Articles L151-1 to
L151-2
SINGLE CHAPTER General tax on polluting activities Articles L151-1 to
L151-2
Article L151-1 (Act no. 2000-1353 of 30 December 2000 Article 37 IV, VII Official Journal of 31 December 2000 in force on 1st January 2001) (Act no. 2001-1276 of 28 December 2001 finance acts Article 60 I c Official Journal of 29 December 2001) (Act no. 2002-1576 of 30 December 2002 special amending acts Article 24 I a Official Journal of 31 December 2002 in force on 1st January 2003)
The scope of the general tax on polluting activities is set by Article 266-6 of the Code des douanes, reproduced hereunder:
Art. 266-6. - I. - A general tax is levied on polluting activities, to be paid by the following persons or legal entities: 1. Any operator of a facility for the storage of household and similar waste or any operator of a facility for the
disposal of special industrial waste by incineration, co-incineration, storage, and physical-chemical or biological
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ENVIRONMENTAL CODE treatment, when these facilities are not exclusively used for the waste produced by the enterprise;
2. Any operator of a facility subject to authorisation under the terms of Book V (Title I) of the Code de l'environnement and having a maximum thermodynamic power when it is a combustion facility, a capacity when it is a household waste incineration facility, or a weight of the substances mentioned in Article 266-7 emitted in one year when the facility does not fall into the previous categories, which exceeds certain thresholds set by a Conseil d'Etat decree;
3. Any operator of aircraft or, failing this, their owner; 4. a. Any person who carries out a first delivery after national manufacture of lubricants likely to produce waste oils,
or who delivers them on the domestic market in the event of purchase within the European Community, or who makes them available for consumption;
b. Any user of oils or lubricant preparations other than those described in a, producing waste oils, the disposal of which into the natural environment is prohibited;
5. Any person who delivers for the first time after national manufacture, or who delivers on the domestic market after purchase, importation or manufacture in another Member State of the European Community, or who makes available for consumption preparations for detergents, including auxiliary washing products or conditioning or softening products for linen respectively included in 4 a and in sections 34022090, 34029090 and 38091010 to 38099100 of the custom tariff;
6. a) Any person who delivers for the first time after national manufacture, or who delivers on the domestic market after purchase, importation or manufacture in another Member State of the European Community, or who makes available for consumption extraction materials which exist naturally in the form of grains or are obtained from crushed or fractionated rocks, the largest dimension of which is lower than or equal to 125 millimetres and the characteristics and uses of which are set by decree;
b) Any person who extracts, produces, or introduces from another Member State of the European Community the materials mentioned in a) for his or her own needs;
7. Any person who delivers for the first time after national manufacture, or who delivers on the domestic market after purchase, importation or manufacture in another Member State of the European Community, or who makes available for consumption pest-control products for agricultural use or similar products included in section 3808 of the customs tariff, which are authorised to be put on the market in accordance with Act no. 525 of 2 November 1943 relating to the organisation of the control of pest-control products for agricultural uses, and in the composition of which there are substances classified as hazardous in accordance with the criteria defined by the rulings made for the application of Article R. 231-51 of the Code du travail;
8. a. Any operator of an industrial or commercial establishment or a public establishment of an industrial and commercial nature having certain facilities that are subject to authorisation under the terms of Book V (Title I) of the Code de l'environnement;
b. Any operator of an establishment mentioned in a. whose activities, featuring on a list drawn up by a Conseil d'Etat decree after a decision by the Higher Council of Classified Facilities, generate, by their nature or their volume, particular risks for the environment.
II. - The tax does not apply: 1. To the special industrial waste disposal facilities exclusively assigned to reuse, or to the waste disposal facilities
exclusively assigned to asbestos-cement; 2. a. To aircraft with a maximum mass at take-off lower than 2 tonnes; b. To aircraft belonging to the State or participating in civil protection or fire-fighting tasks; 3. To the products mentioned in 6 of I of this Article and originating from recycling operations or presenting a dry
matter content of at least 97% of silicon oxide; 4. To lubricants, to detergent preparations, including auxiliary washing preparations, to conditioning or softening
products for linen, to extraction materials, to pest control products for agricultural use, or to the similar products mentioned in 5, 6 and 7 of I of this Article, when the first delivery after national manufacture consists in a direct consignment to a Member State of the European Community or in an export operation;
5. To the operation of classified facilities by the companies registered on the répertoire des métiers. III - Deliveries of inert materials or waste are exonerated from the tax mentioned in I, subject to a limit of 20% of the
total annual quantity of waste received per facility. Waste is considered inert when it does not decompose, does not burn and does not produce any physical or chemical reaction, is not biodegradable and does not degrade other materials with which it comes into contact in a way likely to bring about environmental pollution or to harm human health.
Article L151-2 The other provisions relating to the general tax on polluting activities mentioned in Article L. 151-1 are detailed in
Articles 266-7 and following of the Code des douanes.
BOOK II Physical environments Articles L211-1 to
L220-2 TITLE I Water and aquatic environments Articles L211-1 to
L210-1
Article L210-1 (Act no. 2004-338 of 21 April 2004 Article 1 Official Journal of 22 April 2004)
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ENVIRONMENTAL CODE Water is part of the common heritage of the nation. Its protection, enhancement and development as a usable
resource, with due respect to natural equilibriums, are of general interest. The use of water belongs to all within the framework of laws and regulations as well as that of previously
established rights. The costs relating to the use of water, including the costs to the environment and the resources themselves, are
borne by the users, taking into account the social, environmental and economic consequences and geographical and climatic conditions.
CHAPTER I General principles and resource management Articles L211-1 to
L211-1-1
Article L211-1 (Act no. 2005-157 of 23 February 2005 Article 127 I Official Journal of 24 February 2005) (Act no. 2005-781 of 13 July 2005 Article 41 Official Journal of 14 July 2005)
I. - The aim of the provisions of Chapters I to VII of the present Title is to provide for the balanced management of water resources; this balanced management aims to ensure:
1° The conservation of aquatic eco-systems, sites and wetlands; wetlands are defined as land, whether developed or not, which is usually flooded or waterlogged with salt, brackish or fresh water, either permanently or occasionally; vegetation, where it is present, consists predominantly of hygrophilous plants for at least part of the year;
2° Water protection and the fight against pollution due to effluent, drainage and other discharges, the direct or indirect deposit of materials of any kind, and more particularly by any act that may result in water degradation by modifying its physical, chemical, biological or bacteriological characteristics, whether it is surface water, underground water or sea-water within the boundaries of territorial waters;
3° The regeneration and restoration of the quality of such water; 4° The development and the protection of water resources; 5° The development of water as an economic resource and, in particular, for the development of the production of
renewable electricity, as well as the distribution of this resource. A Conseil d'Etat decree specifies the criteria selected for the application of 1. II. - Balanced management must allow the following requirements to be satisfied or reconciled during various types
of use, activities or work: 1° Public health, public safety and the provision of drinking water to the population 2° Requirements of the biological life within the receiving media, especially the fauna of the fish family. 3° Requirements for conservation and the free flow of water and the protection against floods; 4° Requirements of agriculture, fishing and marine culture, freshwater fishing, industry, energy production and in
particular to ensure the safety of the electricity system, transport, tourism, the protection of sites, leisure activities and water sports as well as any other human activities legally carried out.
Article L211-2 I. - The general regulations for the conservation of the quality and distribution of surface water, underground water
and seawater within the boundaries of territorial waters are determined by a Conseil d'Etat decree. II. - They set out: 1° Quality norms and measures necessary for the restoration and conservation of that quality, depending on the
various uses and cumulative uses of water; 2° The regulations for water distribution in order to reconcile the interests of various categories of users; 3° The conditions under which: a) The effluent discharge, drainage discharge and other discharges, direct or indirect deposit of water or materials
and in particular any act likely to alter the quality of water or that of the aquatic environment may be prohibited or regulated;
b) Necessary measures may be drawn up in order to preserve this quality and ensure the monitoring of wells and boreholes, whether in use or disused;
4° The conditions under which the sale or distribution of products or systems which, under foreseeable normal conditions of use, are likely to be harmful to the quality of the aquatic environment may be prohibited or regulated;
5° The conditions under which technical checks of facilities, works or operations are carried out by the authority in charge of policing waters, or discharges or the relevant activities and the conditions under which the cost of these checks can be allocated to the operator, owner or person in charge of operations in cases of infringement of the regulations. Where checks on substances of any nature, including radioactive substances, are not carried out by public laboratories, these must be carried out by certified laboratories.
Article L211-3 (Act no. 2005-157 of 23 February 2005 Article 128 I Official Journal of 24 February 2005)
I. - In addition to the general regulations mentioned in Article L. 211-2, national or particular stipulations with regard to certain parts of the territory are established by a Conseil d'Etat decree in order to ensure the protection of the principles set out in Article 211-1.
II. - These decrees determine in particular the conditions under which the authorities may: 1° Take measures to reduce or prohibit temporarily certain water uses to deal with a threat or the consequences of
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ENVIRONMENTAL CODE accidents, drought, flood or to the risk of a shortage;
2° Set out, with due respect for the overall balance of rights and duties resulting from public service concessions granted by the State, special stipulations applicable to facilities, works and activities making use of water or which modify its level or flow and the conditions under which drilling work, water intakes, dams, works or discharge structures may be prohibited or regulated, more particularly in zones of resource protection, declared of public interest as a current or future supply of drinking water;
3° Set out particular provisions applicable to natural springs and sources of mineral water and to their protection; 4 Inside the wetlands defined in article L. 211-1: a) Delimit zones known as "wetlands of particular environmental interest", the maintaining or restoration of which
presents an interest to the integrated management of the catchment area, or a particular value in terms of tourism, ecology, landscapes or hunting. These zones may include the wetlands known as "strategic zones for water management" stipulated in article L. 212-5;
b) Draw up, notably by means of dialogue with the local authorities and their groupings, representatives of owners or their groupings, land operators or their representatives, approved nature protection associations, federations of approved fishing associations, federations of hunters, approved professional fishing associations, gathered together in a steering committee for the wetland, under the aegis of the local water commission if one exists, an action programme aiming to restore, protect, manage and redevelop in a sustainable way the zones defined in a;
c) Specify in this programme the practices to be promoted and the means provided to encourage their generalisation, make some of these practices compulsory and specify the methods by which these practices may, where applicable, benefit from aid when they are the cause of extra costs or losses of revenue.
Article L211-4 Water quality norms may be set by the competent state authorities in certain zones of the seas and oceans,
saltwater marshes, estuaries and deltas up to the saltwater limit, in relation to their contribution to activities of exploitation and enhancement of the biological resources of these zones.
These activities may be regulated or prohibited depending upon these quality norms. This provision applies equally to the marketing of vegetable or animal products originating from these waters and intended for human consumption.
Article L211-5 The Préfet and the Mayor concerned must be informed as quickly as possible by any person having knowledge of
an incident or accident representing a danger for public safety, the quality, the movement or the conservation of water. The person having caused the incident or accident and the operator, or if there is no operator, the owner, must, as
soon as they are aware of the incident or accident, take or cause to be taken all possible steps to end the cause of the danger or threat to the aquatic environment, assess the consequences of the incident or accident and remedy it.
The Préfet may prescribe to the abovementioned persons measures which must be taken in order to end the damage observed or to limit its gravity, and namely, the analyses to be carried out.
In case of non-compliance, and if there is a risk of pollution or of the destruction of the natural environment, or a threat to public health and the supply of drinking water, the Préfet may take or cause to be taken any necessary measures at the expense and risk of the persons responsible.
The Préfet and the Mayor concerned must inform the population by all appropriate means of the circumstances of the incident or accident, of its foreseeable effects, and of the measures taken to remedy it.
The employees of the public emergency and fire services have access to private property in order to put an end to the causes of danger or the threat to the aquatic environment and to prevent or limit the consequences of the incident or accident.
Without prejudice to compensation for other damage suffered, legal entities which intervened materially or financially are entitled to the reimbursement by the person or persons responsible for the incident or accident, of costs incurred by them. For this purpose, they may bring a civil action before the criminal jurisdictions referred to with regard to legal proceedings further to the incident or accident.
Article L211-6 Decisions taken in application of Article L. 211-5 may be deferred to the Administrative Courts under the conditions
set out in Article L. 514-6.
Article L211-7 (Act no. 2003-699 of 30 July 2003 Article 55 II Official Journal of 31 July 2003)
I. - On condition that the provisions of Articles 5 and 25 of the Code du domaine public fluvial et de la navigation intérieure are respected, local authorities and their groups as well as mixed syndicates created in compliance with Article L. 5721-2 of the Code général des collectivités territoriales and the local Water Committee are authorised to use Articles L. 151-36 to L. 151-40 of the Code rural in order to undertake the study, the execution and the exploitation of any works, actions, structures or installations of a nature of general interest or of emergency, in the framework of the Water Management Scheme where this exists, providing for:
1° The development of a water basin or part of a water basin: 2° The maintenance and development of a waterway, canal, lake or water body, including access to the waterway,
canal, lake or water body; 3° Water supply; 4° The control of rainwater and surface run-off water or the fight against soil erosion; 5° Protection against flooding or tidal damage;
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ENVIRONMENTAL CODE 6° The fight against pollution; 7 The protection and conservation of surface water and underground water; 8° The protection and restoration of sites, aquatic ecosystems and wetlands as well as associated woodland areas; 9° Hydraulic developments contributing to public safety; 10° The use, maintenance and development of existing hydraulic structures; 11° The putting into place and use of facilities to monitor water resources and the aquatic environment; 12° Consultation and coordination efforts in the field of water and aquatic environment management and protection
in a sub-basin or group of sub-basins, or in an aquifer system, corresponding to a hydrographic unit. I b. - Where a project described in 1°, 2° and 5° of I exceeding a financial threshold determined by decree is located
within the perimeter of an établissement public territorial de bassin (a local public water basin authority) as described in Article L. 213-10, the Préfet requests the opinion of the president of the aforementioned authority. In the absence of a reply within a period of two months, this opinion is considered to be favourable.
II. - The study, execution and use of the said works may be granted in particular to mixed investment companies. The beneficiaries of the concession are entitled to receive the participation costs as provided for in Article L; 151-36 of the Code rural.
III. - One single public enquiry is held under the provisions of Article L. 151-37 of the Code rural and Articles L. 214-1 to L. 214-6 of the present Code and, if appropriate, of the declaration of public interest.
IV. Subject to court rulings made res judicata, the right of access for maintenance machinery to the beds and the banks of non-national waterways, established in compliance with decree no. 59-56 of 7 January 1959 with reference to rights of way to the banks of non-navigable and non-floatable waterways are deemed valid and considered right of way as defined in Article L. 151-37-1 of the Code rural.
V. - The provisions of the present Article are applicable to works, actions, structures or facilities of the State. VI. - A Conseil d'Etat decree determines the conditions of application of the present Article.
Article L211-8 In the event of a serious drought, which endangers the supply of drinking water, as registered by the minister for the
policing of waterways, temporary variations to the regulations setting out the flows set aside for water companies in the water basins concerned may be ordered as and when necessary by the Préfet, following a consultation period with the operator, without giving rise to the payment of compensation money.
Article L211-9 A Conseil d'Etat decree sets out the conditions under which measures may be imposed for the construction and
maintenance of public and private networks and facilities in order to avoid water wastage.
Article L211-10 Notwithstanding the provisions of Article 134 of the Code minier, the samples, documents and information of
interest for research, production or the behaviour of underground water fall immediately into the public domain.
Article L211-11 The specific provisions relating to the quality of waters intended for human consumption are set out in the Code de
la santé publique (Part 1, Book III, Title II, chapters I, II and IV). Those relating to bathing waters are set out in the same Code (Part I, Book III, Title III, Chapter II and Article L.
1336-1).
Article L211-12 (Act no. 2003-699 of 30 July 2003 Article 48 Official Journal of 31 July 2003) (Act no. 2005-157 of 23 February 2005 Article 132 II, III, IV Official Journal of 24 February 2005)
I. - Constraints may be placed to serve the public interest at the request of the State, of local authorities or groups of local authorities on land adjacent to a waterway or to the displacement of a waterway, or land situated in its water basin or in an estuary zone
II. - These constraints may have one or more of the following aims: 1° Create temporary storage areas for flood or surface run-off waters, through developments allowing their storage
capacity to be artificially increased in order to reduce flooding or surface water run-off in areas located downstream; 2° Create or restore the mobility zones of the river bed upstream of urban areas in zones denominated as
"waterway mobility zones" in order to protect or restore its essential hydrological and geomorphologic character; 3 Protect or restore the wetlands known as "strategic zones for water management", delimited in application of
article L. 212-5. III. The zones affected by the constraints described in 1 and 2 of II are delimited by decree of the préfecture. This
decree is issued further to a public enquiry carried out in compliance with the Code de l'expropriation pour cause d'utilité publique. The zones affected by the constraints described in 3 of II are delimited in accordance with article L. 212-5.
IV. - In the temporary flood or surface run-off water storage areas mentioned in 1° of II, owners and operators may be obliged by decree of the préfecture to refrain from acts of any kind likely to hinder the correct functioning of, or the maintenance and protection of structures intended to allow the flooding of the zone. To this end, the decree issued by the préfecture may require a preliminary declaration to be submitted to the appropriate town and country planning authorities for works whose nature, size and location are likely to hinder the storage or flow of water if they do not fall under the authorisations or declarations required by the Code de l'Urbanisme.
The decree issued by the préfecture may also require a preliminary declaration for structures which, due to their
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ENVIRONMENTAL CODE nature, size or location, are likely to hinder the storage or flow of water which do not fall under the scope of authorisations or declarations required by the Code de l'Urbanisme. The Préfet may, by reasoned decision, within two months of receipt of the declaration, refuse permission for such structures to be built or prescribe the necessary work. Work may not begin on these structures before the end of this period.
For works defined in the first paragraph of the present IV, as well as for works and structures requiring authorisation or a declaration as stipulated in the Code de l'Urbanisme and which are likely, because of their nature, size or location to hinder the storage or the flow of water, the competent authority in order to adjudicate on matters of town and country planning obtains the agreement of the Préfet who, upon receipt of the declaration, has a period of two months in which to oppose the works or to prescribe the necessary modifications. The works may not begin before the end of this period.
Moreover, the decree of the Préfet sets out the provisions necessary in a given period to remove any mobile machinery which may cause or suffer damage.
V. - In the waterway mobility zones mentioned in 2° of II, work on the protection of banks, dykes, flood protection banks and washout dykes, constructions and facilities and , in general, any works or structures likely to hinder the natural flow of the waterway may not be carried out. To this end, the decree issued by the Préfet may require a preliminary declaration to the competent town and country planning authorities for works which because of their nature, size or location, are likely to hinder the natural flow of the waterway, and do not fall under the scope of application of the authorisations or declarations required by the Code de l'Urbanisme.
The decree issued by the Préfet may also require a preliminary declaration for works which, because of their nature, size or location, are likely to hinder the natural flow of the waterway, and do not fall under the scope of application of the authorisations or declarations required by the Code de l'Urbanisme. The Préfet may, by reasoned decision, within a period of two months from receipt of the declaration, oppose the structures or prescribe the necessary works. Work on these structures may not begin before the end of this period.
For works as defined in the first paragraph of the present V, as well as for works and structures requiring authorisation or a declaration as stipulated in the Code de l'Urbanisme and which are likely, because of their nature, size or location, to hinder the natural flow of the waterway, the competent authority in order to adjudicate on matters of town and country planning obtains the agreement of the Préfet who has a period of two months from receipt of the declaration or the application to oppose the works or to prescribe the necessary modifications. The works may not begin before the end of this period.
V bis. - In the wetlands known as "strategic zones for water management" mentioned in 3 of II, the Préfet may, by means of a ruling, oblige the owners and operators to refrain from any act likely to damage the nature, the role and the maintenance and conservation of the zone, notably drainage, filling, or ploughing of grassland.
VI. - The decree issued by the Préfet may identify, where appropriate, any existing or missing elements which hinder the objective of the constraint, and whose removal, modification or implementation is made obligatory. The cost of the works and compensation for the prejudice which may result from these works must be met by the authority which requested the constraint. However, if the aforementioned elements belong to the State or state-owned institutions, the state must meet the cost of such works.
VII. - Where one of the purposes for which the constraint has been set up involves public bodies of facilities carrying out, works or activities, the owners and operators are required at all times to grant state employees responsible for their development, maintenance or use access to land within the perimeter of the zones concerned by the constraint.
VIII. - The declaration of constraints mentioned in I give rise to compensation for owners of land in zones affected if such constraints create a material, direct and undeniable prejudice. This compensation is to be paid by the authority which has requested the constraint. This compensation is determined, if no out-of-court settlement can be reached, by the competent compulsory purchase judge in the département.
IX. - Material damage affecting crops, cultivation, livestock (whether dead or alive), motorised land vehicles and buildings caused by flooding linked to the temporary storage of water in zones where constraints are present as mentioned in II give rise to compensation for the occupants.
However, persons or public bodies having contributed through their acts or negligence to the existence of damage are excluded from benefiting from compensation proportionately to the extent to which the said damages can be apportioned to them. This compensation shall be paid by the authority which requested the declaration of constraint affecting the zone.
Damage affecting crops, cultivation, buildings and livestock (whether dead or alive), belonging to agricultural holdings are assessed within the framework of local protocols of agreement. Where these do not exist, damage is assessed in accordance with the provisions of Article L.361-10 of the Code rural.
X. - For a period of ten years beginning on the date of publication of the decree issued by the Préfet which declares the realisation of the works mentioned in VI or, if such works are not necessary, beginning on the date of publication of the decree issued by the Préfet declaring one or more of the constraints mentioned in I, the owner of a plot of land which is the object of one of these constraints may demand its partial or total acquisition by the local authority which has requested the declaration of constraint.
This right of abandonment is exercised in accordance with the provisions of Articles L. 230-1 and in compliance with the Code de l'Urbanisme. The owner may, at the same time, demand partial or total acquisition of other plots of land if the existence of the constraint compromises their use or operation in conditions similar to those existing before the declaration of the constraint.
XI. - In the zones mentioned in II, the communes or public institutions cooperating between communes may declare a right of pre-emption under the conditions defined Article L. 211-1 of the Code de l'Urbanisme. They may delegate this right to the local authority having requested the declaration of constraint.
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ENVIRONMENTAL CODE XII. - A Conseil d'Etat decree determines the conditions of application of the present Article.
Article L211-13 (Act no. 2003-699 of 30 July 2003 Article 53 of the Official Journal of 31 July 2003) (Act no. 2005-157 of 23 February 2005 Article 132 V, VI, VII, VIII Official Journal of 24 February 2005)
I. - Notwithstanding any other provisions to the contrary, the State, the local authorities or their groupings which have acquired land located in temporary flood and surface run-off water storage areas or in mobility zones as defined in Article 211-12 of the present Code may, on the drawing-up or renewal of rural leases defined in Title I of Book IV of the Code rural referring to this land, prescribe methods of ground use to the acquirer in order to prevent flooding or to avoid the aggravation of potential damage.
I bis. - Notwithstanding any other provisions to the contrary, the State, the local authorities or their groupings which have acquired land located in strategic zones for water management mentioned in article L. 211-12 may, on the drawing-up or renewal of the rural leases defined in Title I of Book IV of the Code rural referring to this land, prescribe methods of ground use to the acquirer in order to preserve or restore the land's nature or role.
II. - Notwithstanding Title I of Book IV of the Code rural, the administrative tribunal alone is competent to settle disputes over leases drawn up or renewed under Title I and I bis.
Article L211-1-1 (Inserted by Law no. 2005-157 of 23 February 2005 Article 127 II Official Journal of 24 February 2005)
The protection and the sustainable management of the wetlands defined in article L. 211-1 are of public interest. National, regional and local policies for the development of rural territories and the allocation of public aid take account of the particular difficulties of conserving, operating and ensuring the sustainable management of wetlands and of their contribution to the policies for the protection of biological diversity, the landscape, water resource management and the prevention of flooding, notably by means of adapted agriculture, extensive farming, forestry management, hunting, fishing, and tourism. For this purpose, the State and its public establishments, the regions, the départements, the communes and their groupings ensure, each in its own area of competence, that the various public policies on these territories are consistent. For the application of X of article L. 212-1, the State makes sure that this consistency is taken into account in the water development and management schemes.
CHAPTER II Planning Articles L212-1 to
L212-7
SECTION I Water management master plans Articles L212-1 to
L212-2-3
Article L212-1 (Act no. 2004-338 of 21 April 2004 Article 2 Official Journal of 22 April 2004) (Act no. 2005-781 of 13 July 2005 Article 43 Official Journal of 14 July 2005)
I. - The administrative authority defines the basins or groups of basins, determining, where applicable, the groundwater masses and the inland and territorial maritime waters attached to them.
II. - The competent water basin agency proceeds, in each basin or group of basins: 1 To the analysis of its characteristics and the impact of activities on the status of the waters, as well as an
economic analysis of water uses; these analyses are re-examined periodically; 2 To the drawing-up and regular updating of one or more registers listing: - the zones subject to particular legislative or regulatory provisions enforcing specific European Community
legislation relating to the protection of surface water and groundwater or the conservation of habitats or species directly dependent on water;
- the current or future water catchment areas destined for drinking water supply. III. - Each basin or group of basins has one or more water management master plans setting the fundamental
guidelines for balanced water management as provided in article L. 211-1 and the objectives in terms of quality and quantity of water. The plan takes into account the evaluation by geographical zone of the hydroelectric potential established in application of article 6 of Law no. 2000-108 of 10 February 2000 relating to the modernisation and development of the public electricity service.
IV. - The quality and quantity objectives set by the water management master plans correspond: 1 For surface water except for artificial water masses or those greatly modified by human activity, to a good
ecological and chemical state; 2 For artificial surface water masses or those greatly modified by human activity, to a good ecological potential and
a good chemical state; 3 For groundwater masses, to a good chemical state and a balance between abstractions and the renewal capacity
of each of them; 4 To the prevention of the deterioration of the quality of water; 5 To the particular requirements defined for the zones described in 2 of II, notably in order to reduce the treatment
required to produce water for human consumption. V. - The objectives mentioned in IV must be achieved at the latest by 22 December 2015. However, if it appears
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ENVIRONMENTAL CODE that, for technical or financial reasons or reasons relating to natural conditions, the objectives mentioned in 1, 2 and 3 of IV cannot be achieved within this period, the water management master plan may set longer deadlines, providing reasoning is given, without such postponements exceeding the period corresponding to two updates of the water management master plan.
VI. - When the achievement of the objectives mentioned in 1, 2 and 3 of IV is impossible or disproportionately expensive considering the expected benefits, derogatory objectives may be set by the water management master plan, with reasoning given.
VII. - Modifications to the physical characteristics of the waters or the exercise of new human activities may justify, under the conditions defined by the decree stipulated in XIII, reasoned derogations from the objectives mentioned in 1 to 4 of IV and in VI.
VIII. - The water management master plan indicates how the costs relating to the use of water are borne by the users, distinguishing as a minimum the industrial sector, the farming sector and domestic use. This data is updated when the master plan is updated.
IX. - The master plan determines the developments and necessary provisions to prevent deterioration and ensures the protection and improvement of the state of waters and aquatic environments, in order to achieve and respect the quality and quantity objectives mentioned in IV to VII.
X. - The water management master plan determines the inland and territorial maritime waters and the sub-basins or groups of sub-basins for which a water management scheme defined in article L. 212-3 is required in order to respect the fundamental guidelines and objectives set in application of the present article, and sets the period within which the water management scheme must be drawn up and revised. Failing this, the administrative authority decides upon the perimeter and time frame according to the methods provided for in article L. 212-3.
XI. - The programmes and administrative decisions in the domain of water must be compatible or made compatible with the provisions of the water management master plans.
XII. - In the cases of basins or groups of basins extending beyond the border, their delimitation provided for in I, the objectives mentioned in IV, and the developments and provisions described in IX are defined in coordination with the competent foreign authorities.
XIII. - A Conseil d'Etat decree sets the methods of application of the present article.
Article L212-2 (Act no. 2004-338 of 21 April 2004 Article 3 Official Journal of 22 April 2004)
I. - The competent water basin agency in each basin or group of basins draws up and updates the water management master plans and monitors their application.
II. - The water basin agency collects the observations of the public on the draft water management master plan. It then submits the draft, modified if necessary to take account of the observations of the public, for the opinion of
the Conseils Régionaux and Conseils Généraux, the public territorial establishments, and the consular chambers concerned. These opinions are considered to be favourable if they are not given within a period of four months after the transmission of the draft. The water basin agency may modify the draft to take the opinions given into account.
III. - The water management master plan is adopted by the water basin agency and approved by the administrative authority. It is held at the disposal of the public.
IV. - It is updated every six years. V. A Conseil d'Etat decree specifies the methods of application of the present article. It sets the conditions under
which the administrative authority replaces the water basin agency if it appears that the missions entrusted to it cannot be fulfilled within the periods stipulated, and sets the procedure for this purpose.
Article L212-2-1 (Inserted by Law no. 2004-338 of 21 April 2004 Article 4 Official Journal of 22 April 2004)
The administrative authority draws up and periodically updates, for each basin or group of basins, a several-year programme of measures contributing to the achievement of the objectives and provisions of the water management master plan. This programme and its updates are submitted to the water basin agency for its opinion.
Article L212-2-2 (Inserted by Law no. 2004-338 of 21 April 2004 Article 4 Official Journal of 22 April 2004)
The administrative authority draws up and periodically updates, for each basin or group of basins and after the opinion given by the water basin agency, a programme for the monitoring of the water status.
Article L212-2-3 (Inserted by Law no. 2004-338 of 21 April 2004 Article 4 Official Journal of 22 April 2004)
In the cases of basins or groups of basin extending beyond the border, the administrative authority draws up the programmes provided for in articles L. 212-2-1 and L. 212-2-2 in coordination with the competent foreign authorities.
SECTION II Water management schemes Articles L212-3 to
L212-7
Article L212-3 In a sub-basin or group of water-basins corresponding to a hydrographic unit or to a aquifer system, a water
management scheme determines the general objectives for the use, enhancement and quantitative and qualitative
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ENVIRONMENTAL CODE protection of surface and underground water resources and of aquatic ecosystems as well as the protection of wetlands, in accordance with the principles set out in Article L. 211-1.
Its perimeter is determined by the water management scheme mentioned in Article L. 212-1; where this is absent, it is decided by the Préfet further to consultation with or based on proposals by the local authorities, further to consultation of the water basin agency.
Article L212-4 I. - For the development, the revision and the control of the application of the water management scheme, a local
water committee is created by the Préfet. II. - It is composed as follows: 1° One half of the committee consists of representatives of the local authorities and local public institutions who
appoint the president of the committee. 2° One quarter consists of representatives of the users, local owners, professional organisations and associations
concerned. These associations must have been legally declared for at least 5 years on the date of the creation of the committee and, by virtue of their Articles of association, entirely or partially protect the principles set out in Article 211-1;
3° One quarter consists of representatives of the State and of its public institutions.
Article L212-5 (Act no. 2005-781 of 13 July 2005 Article 43 Official Journal of 14 July 2005)
The Water Management Scheme reports on the state of water resources and of the aquatic environment. It catalogues the various ways in which existing water resources are used.
It takes account of guidelines and programmes provided by the State, local authorities and their groupings, mixed syndicates, public institutions, other public bodies as well as mixed investment companies and professional associations as approved under Order no. 2004-632 of 1st July 2004 relating to professional associations of owners having influence on the quality, distribution or use of water resources. The scheme also takes account of the evaluation by geographical zone of the hydroelectric potential established in application of I of article 6 of abovementioned Law no. 2000-108 of 10 February 2000.
It subsequently sets out the priorities to be taken into consideration in order to achieve the objectives defined in Article L.212-3, taking into account the protection of the natural aquatic environment, the need to enhance water resources, the foreseeable evolution of rural spaces, the urban and economic environment and the equilibrium which must be ensured between various uses of water. It evaluates the economic and financial means necessary for its implementation.
It may delimit, with a view to their protection or restoration, the wetlands known as "strategic zones for water management" located inside the wetlands defined in article L. 211-1 and contributing significantly to the protection of drinking water resources or the achievement of the objectives of the water management scheme in terms of the good state of the water. The methods for delimiting these strategic zones are defined by decree.
It must be compatible with the guidelines laid down by the master plan mentioned in Article L.212-1.
Article L212-6 (Act no. 2004-338 of 21 April 2004 Article 5 Official Journal of 22 April 2004)
The draft water management scheme is drawn up or revised by the local water commission, where applicable within the period set by the water management master plan in application of X of article L. 212-1. However, if the draft has not been drawn up or revised on expiry of this period, it may be drawn up or revised by the administrative authority. The draft is submitted for the opinion of the general councils (Conseils Généraux), the Regional Councils (Conseils Régionaux), the public territorial establishments of the basin, the consular chambers and the water basin agency concerned. The water basin agency ensures the harmonisation of the water management schemes falling within its competence.
The scheme is made public by the administrative authority with, as an annexe, the opinions of the bodies consulted. This file is made available to the public for a period of two months.
At the end of this period, the water management scheme, if necessary modified in order to take account of observations made by the public, the opinions of the communes, the general councils, the regional councils and the water basin agency, is approved by the administrative authority. It remains available to the public.
When the scheme has been approved, the decisions taken relating to water by the administrative authorities and applicable within the perimeter which it defines must be compatible or made compatible with this scheme. Any other administrative decisions must take account of the provisions of the scheme.
The local water commission has knowledge of works, documents or programmes falling within the perimeter of the water management scheme and decisions referred to in the previous paragraph.
Article L212-7 As and when required, the conditions of application of Articles 212-3 to L. 212-6 are determined by decree.
CHAPTER III Administrative and financial structures Articles L213-1 to
L213-20
SECTION I National Water Agency Article L213-1
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ENVIRONMENTAL CODE Article L213-1
The role of the National Water Agency is: 1° To give an opinion on the geographical areas surrounding the basins and groups of basins 2° To give an opinion on all national and major regional projects concerning the development and distribution of
water; 3° To give an opinion on any problem common to two or more water basin committees or water administration
authorities; 4° In general, to collect the necessary documentation and to formulate opinions on matter covered by chapters I to
VII of the present Title.
SECTION II Water basin agencies Articles L213-2 to
L213-4
Article L213-2 I. - A water basin agency is set up in each basin or group of basins. This agency is made up of: 1° Representatives of the regions and local authorities located wholly or partly in the basin; 2° Representatives of users and of competent persons; 3° Representatives appointed by the State, in particular from socio-professional groups. II. - The representatives of the two former categories hold at least two thirds of the total number of seats. III. - This organisation is consulted about the suitability of works and developments in the public interest envisaged
in its area of jurisdiction, on disputes arising between the authorities or interested groups and more generally on any matters relating to chapters I to VII of the present Title.
IV. - A Conseil d'Etat decree determines the conditions of application of the present Article.
Article L213-3 In each water basin, the Préfet of the region where the water agency has its headquarters implements and
coordinates state policy regarding the policing and management of water resources in order to ensure the unity and consistency of decentralised actions of the State in this domain in the various regions and départements concerned.
The decrees provided for in Article L 211-2 stipulate the conditions of intervention of the Préfet coordinating the basin, in particular those concerning the management of crisis situations, as well as all and any means required to fulfil the roles entrusted to him or her in accordance with chapters I to VII of the present Title.
Article L213-4 In each overseas département, a water basin committee, in addition to the jurisdiction conferred upon it under
Article L. 213-2, is associated with the implementation of the administrative structures which prove necessary and, if appropriate, the development of adaptations intended to facilitate the enforcement within the départment of the provisions of chapters I to IV, VI and VII of the present Title.
SECTION III Water administration authorities Articles L213-5 to
L213-7
Article L213-5 I. - In each basin or group of basins, a water administration authority, a public administrative institution endowed
with civil status and financial autonomy, has the task of facilitating the various actions of public interest within the basin or group of basins.
II. -Each authority is overseen by a board comprising of: 1° A president appointed by decree; 2° Representatives of the regions and local authorities located wholly or partly in the basin; 3° Representatives of the users; 4° Representatives of the State and, where appropriate, qualified persons; 5° A representative of the staff of the authority III. - The categories specified in 2°, 3° and 4° of II have an equal number of seats.
Article L213-6 (Act no. 2004-1485 of 30 December 2004 Article 121 II finance acts rectification for 2004 Official Journal of 31 December 2004) (Act no. 2005-95 of 9 February 2005 Article 2 Official Journal of 10 February 2005) (Act no. 2005-157 of 23 February 2005 Article 196 Official Journal of 24 February 2005)
The authority contributes, particularly through State funding, to the implementation of studies, research and works of public interest in the basins and to covering their operating costs.
The agency grants subsidies and refundable cash advances to public bodies and private organisations for work of public interest to be carried out in the basin or group of basins where this work is done directly by them and is of a nature which allows the water authority's financial costs to be reduced.
The authority allocates subsidies in capital to the local authorities and their groupings for the fulfilment of drinking water supply and sewerage works in the rural communes.
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ENVIRONMENTAL CODE Respecting the international undertakings of France and in the framework of agreements submitted for the opinion
of the water basin agency, the authority may conduct international cooperation actions in the domains of water and sewerage, within the limit of 1% of its resources, where applicable, and following the statutory laws in force for each category of personnel, with the assistance of its officers.
The several-year programme of the water authority takes into account the developments carried out by farmers in the mountainous zones for the prevention of water pollution in the basins located upstream from the current or future catchment areas destined for drinking water supply, as well as those defined as mountainous zones in the framework of concerted action programmes required to achieve the quality objectives defined by a water management scheme or by the water management master plan.
Article L213-7 A Conseil d'Etat decree sets the conditions of application of Articles 213-5 to L. 213-6.
SECTION IV National Water Fund Article L213-8
Article L213-8 (Act no. 2002-1575 of 30 December 2002 Article 44 II Official Journal of 31 December 2002) (Act no. 2003-1311 of 30 December 2003 Article 38 finance act for 2004 Official Journal of 31 December 2005)
As stated in Article 58 of the finance law of the year 2000 (Act no. 99-1172 of 30 December 1999) reproduced hereafter:
"I. - Repealed II. - A water solidarity contribution has been set up since 1 January 2000, paid to the State by the water authorities;
its amount is set each year by the finance law. This contribution is paid to the Chief Accountant of the Treasury of the place where each water authority has its
headquarters, in the form of a single payment to be made before 15 February of each year. This contribution is collected in accordance with the provisions applied to State debts not concerning taxation,
property, fines or other financial penalties. The amount of the water solidarity contribution is entered as compulsory expenditure in the initial budget of the
water authorities."
SECTION V Local water committees Article L213-9
Article L213-9 In order to facilitate the achievement of objectives set out in a water management scheme, the local authorities
concerned and their groups exercising all or part of their jurisdiction detailed in Article L. 211-7 may combine to form a local water committee.
This public institution is composed and operates in accordance with the provisions governing one of the public institutions mentioned in titles I and II and in books IV and VII of the fifth part of the Code général des collectivités territoriales.
The associations and syndicates of bodies having activities relating to water may be associated with its work, in a consultative capacity.
Within the scope of its intervention, the local water committee may exercise all or part of the jurisdiction detailed in Article L. 211-7.
It draws up and adopts a multi-annual intervention programme, having first obtained the assent of the local water committee.
The conditions of application of the present Article are set by decree.
SECTION VI Organisations acting in the capacity of the developer Article L213-10
Article L213-10 (Act no. 2003-699 of 30 July 2003 Article 46 Official Journal of 31 July 2003) (Act no. 2005-157 of 23 February 2005 Article 136 II Official Journal of 24 February 2005)
In order to facilitate, at the level of a hydrographic basin or sub-basin, flood prevention and balanced water resource management, as well as the protection and management of wetlands, the local authorities concerned and their groupings can combine to form an établissement public territorial de bassin (local water-basin public institution).
This public institution is composed and operates, depending on each case, in accordance with the provisions of the Code Général des Collectivités Territoriales governing institutions set up in application of Articles L. 5421-1 to L. 5421-6 or Articles L. 5721-1 to L. 5721-8 of the same Code.
The Préfet coordinating the basin sets the scope of intervention of this public institution by decree and further to an opinion from the water basin committee and local authorities concerned and, where appropriate, after obtaining the opinion of the local water committee.
The conditions of application of the present Article are set by a Conseil d'Etat decree.
SECTION VII
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ENVIRONMENTAL CODE Water offices in overseas départements Articles L213-13 to
L213-20
Article L213-13 (Inserted by Act no. 2003-660 of 21 July 2003 Article 54 I, II Official Journal of 22 July 2003)
I. - A water office is set up in each overseas département. It is a local public institution operating in an administrative capacity, and attached to the département.
In liaison with the water-basin committee, and in accordance with the principles of the management of resources and natural environments as defined in Article L. 110-1, the water office is responsible for facilitating the various actions of general public interest in the field of water management and aquatic environment management. Without prejudice to the jurisdiction granted to the State and to local authorities, it performs the following tasks:
a) The study and supervision of water resources, aquatic environments and coastlines as well as the uses thereof; b) Advice and technical assistance to developers, training and information in the field of water management and
aquatic environment management. c) On a proposal by the water-basin committee, the scheduling and funding of actions and works. II. - The water office is governed by a board comprising: 1° Representatives of the region, the département, the communes, as well as public institutions of inter-commune
cooperation or mixed syndicates having jurisdiction in the domain of water; 2° Representatives of State services in the département 3° Representatives of users and socio-professional groups 4° Representatives of approved consumer and environmental protection associations; 5° Qualified persons in the domain of water, aquatic environments and coastlines. The members designated in 1° represent at least 50% of the board. A representative of the personnel sits on the board with a consultative vote. The office is presided over by the president of the Conseil Général. The director of the office is appointed, further to the opinion of the Préfet, by decision of the president of the Conseil
Général. The Préfet exercises the functions of commissioner of the government within the water office. III. - The personnel of the office is recruited and managed within the framework of the legislative and regulatory
provisions applicable to the local civil service. IV. - The resources of the office come from: 1° Water taxes, following a proposal by the water-basin committee and in the framework of a multi-annual
intervention programme: 2° Fees for services rendered; 3° Subsidies 4° Financial resources provided for by the laws and regulations in force. Legal and budgetary control of the actions of the office is carried out in accordance with the provisions of Article
3241-1 of the Code général des collectivités territoriales.
Article L213-14 (Inserted by Act no. 2003-660 of 21 July 2003 Article 54 I, III Official Journal of 22 July 2003)
I. - In cases where the water-basin committee entrusts the water office, in accordance with the provisions of c of I of Article L. 213-13, with the scheduling and funding of actions and works, the water office decides on a multi-annual intervention programme which determines the scope and conditions of its intervention and forecasting the amount of expenditure and revenue necessary for its implementation.
II. - Following a proposal by the water-basin committee and within the framework of the multi-annual programme mentioned above, the office sets and receives water tax from persons or bodies using water drawn from the natural environment. The tax is calculated by applying a rate based on the purpose for which the water is drawn, to the volume of water used.
III. - In cases where it is set, the water tax is calculated according to the volume of water taken from the natural environment in the course of a year. It is payable by the person or body having drawn the water. The obligations of declaration to which those who draw water from the natural environment are subject, are set by decree.
IV. - The rate of water taxes is set by a decision of the board of the water office after having obtained the assent of the water-basin committee, within the following limits:
- for water drawn for use as drinking water supply: between 0.5 euro cents per cubic metre and 5 euro cents per cubic metre:
- for water drawn for irrigation of farmland: between 0.1 euro cents per cubic metre and 0.5 euro cents per cubic metre:
- for water drawn for other economic activities: between 0.25 euro cents per cubic metre and 2.5 euro cents per cubic metre:
When the water is drawn for a variety of purposes, the water tax is calculated proportionately to the volumes used for each purpose.
When the water drawn is intended for public distribution, the bodies drawing the water must share the cost of the water tax equally among the consumers.
V. - The following are exempt from this water tax:
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ENVIRONMENTAL CODE 1° Water drawn from the sea; 2° Mine drainage water, as well as water which it has become necessary to draw in order to allow underground
works, insofar as the water drawn is not used directly for domestic, industrial or agricultural purposes; 3° Water drawn for purposes linked to fish-farming 4° Water drawn in order to re-supply natural environments 5° Water drawn for fire-fighting purposes 6° Water drawn for purposes of the production of renewable energies 7° Underground water drawn during drainage carried out in order to keep buildings or works dry. VI. - The tax is not due if the volume of water drawn is less than 50 000 cubic metres per year. VII. - In the absence of measurement of volumes drawn, the tax is calculated on an estimated volume depending on
the activity. The value of the estimated volumes specific to the activity is determined under conditions set by decree, after
having obtained the opinion of the national water committee.
Article L213-15 (Inserted by Act no. 2003-660 of 21 July 2003 Article 54 I, III Official Journal of 22 July 2003)
I. - The water office may inspect all of the elements allowing the verification of the water tax base. Inspection may be carried out on the basis of documents, and on site.
II. - The office may request the necessary documents to be produced as well as any other useful justification in order to verify the volume of water drawn.
III. - Inspection on site is carried out under the responsibility of the employees of the water office, empowered by its director. The office informs the payer that, during the inspections, he or she may have the assistance of an advisor of his or her choice.
IV. - The office informs the payer of the results of the inspection. V. - The conditions of application of the present Article are set by decree.
Article L213-16 (Inserted by Act no. 2003-660 of 21 July 2003 Article 54 I, III Official Journal of 22 July 2003)
I. - The office has rights of communication allowing it to obtain knowledge, or if necessary, copies of documents held by third parties in order to them for the purposes of tax assessment or water tax inspection.
II. - State administrative bodies, local authorities, state-owned enterprises, as well as establishments or organisations of any kind under the control of administrative authority, must provide the office, on its request, with the service documents in their possession which are necessary for assessment and inspection purposes without being able to cite professional secrecy.
III. - The professional secrecy obligation as defined in Article 226-13 of the Code pénal applies to any persons required in the course of their duties or responsibilities to intervene in the tasks of assessment, inspection, collection or litigations in connection with these taxes.
Article L213-17 (Inserted by Act no. 2003-660 of 21 July 2003 Article 54 I, III Official Journal of 22 July 2003)
I. - As a matter of regular procedure, taxes are automatically due by persons: 1° Who have not produced a declaration of the elements necessary for their calculation on the date determined in
application of Article L. 213-14, after a period of thirty days following a preliminary formal notification made to them by the office:
2° Who have failed to reply to requests for information, justifications or clarifications presented on the basis of Article L.213-15;
3° Who have refused to submit to inspections or have obstructed the course of such inspections. II. - In the case of automatic taxation ex officio, extra charges faced by the taxpayer are subject to a penalty
increase of 10%. III. - In the case of automatic taxation ex officio, the taxpayer is informed of the bases or elements used in
calculating the taxes at least thirty days before a collection notice is issued, specifying the terms and conditions used to determine these bases and elements and the amount of tax due, as well as the possibility for the taxpayer to present his or her observations within the same period.
This notice interrupts prescription.
Article L213-18 (Inserted by Act no. 2003-660 of 21 July Article 54 I, III Official Journal of 22 July 2003)
Total or partial omissions observed in the basis of assessment of water taxes, insufficiencies, inaccuracies or errors of taxation may be corrected by the office up to the end of the third year following that during which the water tax is due.
Article L213-19 (Inserted by Act no. 2003-660 of 21 July 2003 Article 54 I, III Official Journal of 22 July 2003)
The office may pronounce, ex officio, on a tax allowance or rebate of taxes and penalties which were not due. The office may grant full or partial rebates of taxes and penalties following a reasoned request by the taxpayer.
Article L213-20 (Inserted by Act no. 2003-660 of 21 July 2003 Article 54 I, III Official Journal of 22 July 2003)
The director of the office determines and makes enforceable the revenue orders relating to the water tax.
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ENVIRONMENTAL CODE The tax is collected by the accountant of the water office in the same way as for direct contributions. The collection date is the starting point of time periods referred to in the present Article. The due payment date is set as being the last day of the month following the date of issue of the collection notice. The payment deadline is set as being the 15th day of the second month following the date of issue of the collection
notice. If payment is not received by this date, the amount due is increased by 10%. Water taxes or surcharges of less than 100 euros are not collected.
CHAPTER IV Activities, installations and use Articles L214-1 to
L214-16
SECTION I Authorisation or declaration policies Articles L214-1 to
L214-7-1
Article L214-1 (Order no. 2005-805 of 18 July 2005 Article 1 Official Journal of 19 July 2005)
The following are subject to the provisions of Articles L. 214-2 to 214-6: installations not appearing in the nomenclature of classified facilities, structures, works and activities carried out for non-domestic purposes by any person or body, public or private, and resulting in the drawing of surface or underground water, whether returned or not, or in a change in the level or method of flow of water or discharges, the destruction of spawning grounds, zones for the growth or feeding of pisciculture fauna, runoff, direct or indirect discharges or deposits, chronic or periodic, even if these are not pollutant.
Article L214-2 (Order no. 2005-805 of 18 July 2005 Article 2 Official Journal of 19 July 2005)
The installations, structures, works and activities referred to in L. 214-1 are defined in a nomenclature, determined by a Conseil d'Etat decree after having obtained the opinion of the national water committee, and subject to authorisation or declaration depending on the level of risk they represent and the seriousness of their effects on water resources and aquatic ecosystems, bearing in mind, notably, the existence of the zones and perimeters established for the protection of water and aquatic environments.
This decree also defines the criteria of domestic use, and particularly the volume of water below which the use of water is considered domestic, as well as other uses whose impact on the aquatic environment is too weak to justify their being subject to authorisation or declaration.
Article L214-3 (Order no. 2005-805 of 18 July 2005 Article 3 Official Journal of 19 July 2005)
I. - The following are subject to authorisation by the administrative authorities: installations, structures, works and activities likely to represent a threat to public health and safety, to have an adverse effect on the free flow of water, to reduce water resources, to increase the risk of flooding noticeably, to cause serious damage to the quality or diversity of the aquatic environment, notably to pisciculture populations.
The prescriptions necessary for the protection of the interests mentioned in Article L. 211-1, the means of supervision, the terms and conditions of technical inspections and the means of intervention in the event of an incident or accident are set by an authorisation ruling and potentially by complementary documents drawn up after this authorisation.
II. - The following are subject to declaration: installations, structures, works and activities which, even if they are not likely to represent such a risk, must nevertheless respect the prescriptions set out in application of Articles L. 211-2 and L 211-3.
Within a period set by a Conseil d'Etat decree, the administrative authority may oppose the projected operation if it appears that it is incompatible with the provisions of the water management master plan or the water management scheme, or causes harm to the interests mentioned in article L. 211-1 to such an extent that no prescription may remedy it. The works may not commence until this period has expired.
If respect of the principles mentioned in Article L 211-1 is not guaranteed by the implementation of the prescriptions enacted in application of articles L. 211-2 and L. 211-3, the administrative authority may, at any moment, impose, by decree, any specific prescriptions necessary.
III. - The conditions under which the prescriptions referred to in I and II are established, modified and communicated to third parties, are set by decree.
IV. - A Conseil d'Etat decree sets the conditions under which several requests for authorisation and declaration relating to connected operations or those of the same activity may by subject to a joint procedure.
Article L214-4 (Act no. 2005-781 of 13 July 2005 Article 43 Official Journal of 14 July 2005)
I. - Authorisation is granted after a public enquiry and, where appropriate, for a fixed period of time. The conditions under which the renewal of authorisations and the authorisation of works, installations or activities of a temporary nature and not having a significant and lasting effect on the natural environment may be granted without a preliminary public enquiry are set by decree.
II. - The authorisation may be withdrawn or modified, without compensation by the State exercising its legal powers,
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ENVIRONMENTAL CODE in the following cases:
1° In the interest of public health, and in particular when this withdrawal or modification is necessary for the supply of drinking water to the population:
2° To prevent or halt flooding or in the event of a threat to public safety; 3° In the event of a major threat to the aquatic environment, and particularly when aquatic environments are subject
to hydraulic conditions which are incompatible with their conservation. 4° In cases where structures or installations are abandoned or are no longer regularly maintained III. Justification of any refusal, withdrawal or modification of authorisation must be provided to the applicant. IV. A decree sets the conditions under which the authorisations of works or activities of a temporary or periodic
nature and not having a major, lasting effect on the natural environment are granted, without a preliminary public enquiry, to authorised hydroelectricity companies which make this request for the duration of the title. The provisions of the decrees in force on the date of publication of Law no. 2005-781 of 13 July 2005 relating to programmes and setting the guidelines for energy policy, will be repealed if they do not conform to the provisions of the decree described above.
Article L214-5 The regulations relating to water for hydroelectric firms fall jointly under Article 10 of the Law of 16 October 1919
relating to the use of hydraulic energy and Articles l. 214-1 to L. 214-6. These regulations may be subject to modifications, without affecting, however, the overall balance of the
concession.
Article L214-6 (Order no. 2005-805 of 18 July 2005 Article 3 Official Journal of 19 July 2005)
I. - In all cases, the rights of third parties are and remain reserved. II. - Installations, structures and activities declared or authorised in application of legislation or regulations relating to
water prior to 4 January 1992 are considered as declared or authorised in application of the provisions of the present section. The same is true of installations and structures benefiting from a right granted by deed.
III. - Installations, structures and activities which, not entering into the field of application of II, have, from 4 January 1992, by virtue of the nomenclature provided by article L. 214-2, been subject to an obligation of declaration or authorisation which has not been satisfied, may continue to operate if the operator or, failing this, the owner, has provided the administrative authority with the information stipulated by article 41 of Decree no.93-742 of 29 March 1993, at the latest by 31 December 2006.
However, if it appears that the operation of these installations and structures or the continuation of these activities presents a risk of serious harm to the interests mentioned in article L.211-1, the administrative authority may demand a declaration or a request for authorisation.
IV. - Installations, structures, activities or works which, after being properly commissioned or undertaken, are to be subject to declaration or authorisation by virtue of a modification of the nomenclature provided for in article L. 214-2, may continue to operate if the operator, or failing this the owner, has made itself known to the administrative authority, or if it makes itself known within a period of one year from the date on which the new obligation has been established.
The information that must be provided to the administrative authority and the measures that the authority may impose in order to safeguard the interests mentioned in article L. 211-1 are specified by a Conseil d'Etat decree.
V. - The provisions of II and III apply subject to rulings having the force of res judicata made before the date of publication of Order no. 2005-805 of 18 July 2005.
VI. - The installations, structures and activities described by II, III and IV are subject to the provisions of the present section.
Article L214-7 The installations subject to authorisation or declaration in application of Title I of Book V are subject to the
provisions of Articles L. 211-1, L. 212-1 to L. 212-7, L. 214-8, L. 216-6 and L. 216-13. Individual and regulatory measures for the application of Title I of Book V set the rules applicable to classified facilities having an impact on the aquatic environment, notably with regard to their discharges and consumption.
Article L214-8 Installations subject to authorisation or declaration in accordance with Articles 214-1 to 214-6 allowing surface water
to be drawn for non-domestic purposes or discharges, as well as any underground pumping installation, must be equipped with appropriate means of measurement or evaluation.
Their operators or, in the absence of operators, their owners, must implement the fitting and operation, keep the corresponding data for three years, and hold the data at the disposal of the administrative authority as well as of public bodies, a list of which is set by decree.
Existing installations must have been brought into compliance with the provisions of the present Article within a period of five years from the 4th of January 1992.
The provisions of this Article also apply to classified facilities in application of Title I of Book V.
Article L214-9 I. - In cases where hydraulic development works, other than those permitted or authorised in application of the
aforementioned Law of 16 October 1919, have as their purpose or consequence the regulation of the flow of a non-national waterway or the increase of its flow during the low water period, all or part of the artificial flow may be assigned, by virtue of a declaration of public interest, for a section of the aforementioned waterway and for a fixed period
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ENVIRONMENTAL CODE of time, to certain purposes, without prejudice to the application of Article L. 211-8.
II. - The declaration of public interest is considered to be an authorisation in accordance with the present sub-section and set, under the conditions provided for by decree, as well as the prescriptions relating to its installation and operation:
1° An assigned flow, determined in consideration of the resources available at different times of year and attributed as a priority to the beneficiary of the declaration of public interest;
2° The prescriptions judged necessary in order to ensure the passage of all or part of the assigned flow in the section in question, in the most rational and least damaging conditions for the other users of the aforementioned waterway and with all due respect for aquatic ecosystems.
III. - The provisions of the present Article are also applicable to hydraulic redevelopment works authorised before 4 January 1992.
Article L214-10 The decisions made in application of L. 214-1 to L. 214-6 and L. 214-8 may be deferred to the administrative courts
under the conditions provided for by Article L 514-6.
Article L214-11 The conditions under which the spreading of agricultural effluent may be authorised are set by decree.
Article L214-7-1 (Inserted by Law no. 2005-157 of 23 February 2005 Article 127 III Official Journal of 24 February 2005)
When the Préfet considers it necessary for the application of articles L. 214-1 and L. 214-7, he or she may proceed to the delimitation of all or part of the wetlands defined in article L. 211-1, in coordination with the local authorities and their groupings.
A Conseil d'Etat decree sets the conditions of application of the present article.
SECTION II Use of vessels and boating craft Articles L214-12 to
L214-13
Article L214-12 In the absence of an approved water management scheme, the use of non-motorised leisure vessels is permitted
within the laws and regulations of the police and the rights of local residents. The Préfet may, after consultation with the parties concerned, regulate on non-national waterways or sections of
non-national waterway, the use of non-motorised leisure vessels or the practice of tourism, leisure and water sports in order to safeguard the principles mentioned in Article L. 211-1.
The civil liability of local residents on non-national waterways may only be engaged with regard to damage caused or suffered as a result of the use of non-motorised leisure vessels or the practice of tourism, leisure and water sports in the event of wrongful acts by such local residents.
Article L214-13 The use of motorised vessels on a non-national waterway, or on a section of such waterway may be prohibited or
regulated by decree of the Préfet, after having obtained the opinion of the department responsible for the policing of the waterway, either for safety or health reasons, or at the request of a local resident where this use results in serious disturbance to the enjoyment of the rights of the local resident.
SECTION III Wastewater disposal Article L214-14
Article L214-14 The provisions relating to wastewater disposal are set out in the Code de la santé public (part 1, Book III, Title III,
Chapter I, Articles L. 1331-1 to L. 1331-16) and in the Code général des collectivités territoriales (part 2, Book II, Title II, Chapter IV, sections 1 and 2).
SECTION IV The price of water Articles L214-15 to
L214-16
Article L214-15 (Act no. 2002-92 of 22 January 2002 Article 27 Official Journal of 23 January 2002)
All water bills include an amount calculated according to the volume actually consumed by the subscriber to a water distribution service, and may, moreover, include an amount calculated independently of this volume, in consideration of the service's fixed charges and the characteristics of the consumer supply line.
However, the Préfet may exceptionally, under the conditions set by a Conseil d'Etat decree, at the request of the Mayor or the president of the public institution of inter-commune cooperation or of the presidents of the mixed syndicates referred to in Article L 5721-2 of the Code général des collectivités territoriales having competence for the distribution of water, if water resources are naturally abundant, and if the number of users connected to the network is sufficiently low, or if the commune usually experiences large variations in the size of its population, authorise the implementation of pricing which does not relate in direct proportion to the total volume consumed.
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ENVIRONMENTAL CODE In Corsica, the implementation of the pricing policy provided for by the previous paragraph is authorised, according
to the same conditions, by the Assemblée de Corse, at the request of the Mayor, of the president of the public institution of inter-commune cooperation or of the president of the competent mixed syndicate.
Article L214-16 Article L. 214-15 does not apply to the local authority of Saint-Pierre-et-Miquelon.
CHAPTER V Provisions specific to non-national waterways Articles L215-1 to
L215-24
SECTION I The rights of local residents Articles L215-1 to
L215-6
Article L215-1 Local residents may use running water which flows past or through their property only within the limits defined by
law. In exercising this right they must comply with the provisions of the regulations and authorisations issued by the administration.
Article L215-2 The beds of non-national waterways belong to the owners of the two banks. If the two banks belong to different owners, each owns half of the bed, along a line supposed drawn in the centre of
the waterway, unless otherwise stipulated. Each local resident has the right to remove from the part of the bed belonging to him or her, all natural products,
and to remove sand and stones from the silt, on condition that this does not modify the water behaviour and that the resident clears the waterway in compliance with the regulations set by Articles L. 215-14 to 215-24.
The rights acquired by local residents or other concerned persons or bodies with regard to parts of the waterway used for purposes of access to their property are and remain reserved.
Article L215-3 Where the waterway is disused, either due to natural reasons or further to works legally carried out, each local
resident may freely reclaim the use of it within the limits defined by the previous Article.
Article L215-4 Where the course of a non-national waterway changes naturally, the owners of the land upon which the waterway
establishes its new bed must accept the passage of this water without compensation; they may however, in the year following the change of course, take measures to re-establish the former course of the waterway.
Resident owners of the abandoned bed enjoy the same faculty and may, within a period of one year, carry out the works necessary to re-establish the original course.
Article L215-5 Where, after work legally ordered, it is necessary to widen the bed or open a new bed, the owners of the occupied
land will receive compensation for the resulting right of way. In determining this compensation, the respective locations of each resident relative to the axis of the new bed are
taken into account, and the boundaries of the properties remaining determined in accordance with the provisions of the second paragraph of Article L. 215-2, unless stipulated otherwise.
Buildings, courtyards and gardens adjoining dwellings are exempt from the right of way. Litigations giving rise to the application of the second paragraph of the present Article and the settlement of
compensation are decided by the tribunal d'instance.
Article L215-6 Ownership of alluviums, water-relays, aggradations, isles and islands which form in non-national waterways is and
remains regulated by the provisions of Articles 556, 557, 559, 561 and 562 of the Code civil.
SECTION II Policing and conservation of waters Articles L215-7 to
L215-13
Article L215-7 The administrative authority is responsible for the conservation and the policing of non-national waterways. It takes
all measures necessary in order to ensure the free flow of water. In all cases, the rights of third parties are and remain reserved.
Article L215-8 The general regime of these waterways is determined, if appropriate, in such a way as to reconcile the interests of
the various categories of water users with all due respect to the property and for existing rights and practices, after public interest enquiry, by decision of the minister responsible for the waterway or section of the waterway.
Article L215-9
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ENVIRONMENTAL CODE The resident owner of a non-national waterway may only carry out works above or adjoining this waterway on
condition that these works do not compromise water flow or cause any damage whatsoever to neighbouring property.
Article L215-10 I. - The authorisations or permits granted for the creation of structures or factories on non-national waterways may
be revoked or modified without compensation from the State exercising its legal powers in the following cases: 1° In the interests of public health, and notably when the revocation or modification is necessary for the supply of
drinking water of population centres, or is the consequence thereof; 2° In order to prevent or halt floods: 3° In cases covered by the general regulations provided for in Article L. 215-8; 4° When they concern structures establishing or regulating the water plan or establishments or factories which, as
of 30 March 1993, have not been maintained for more than twenty years; any public authority or institution concerned may, in the event of default by the person or body holding the permission or authorisation, and in their place, after a demand issued by the Préfet, carry out works which are the consequence of the revocation or modification of the permit or authorisation, and pursue, against the holder of the permit or authorisation, the reimbursement of these works;
5° For environmental protection purposes, and in particular when these authorisations subject natural aquatic environments to critical hydraulic conditions which are not compatible with their conservation under the terms and conditions set by a Conseil d'Etat decree.
II. - The provisions of I are applicable to permits or authorisations granted in accordance with Articles L. 214-1 to 214-6, or before these provisions came into force, as well as to legally declared establishments and to companies authorised under the terms of Title III of the Law of 16 October 1919 relating to the use of hydraulic energy.
III. - The conditions of application of 4° of I are set by a Conseil d'Etat decree.
Article L215-11 The owners or operators of mills and factories, even if they are authorised or are legally declared, are liable for
degradation caused to pathways and property.
Article L215-12 Mayors can, by authority of the Préfet, take all necessary measures in order to ensure the supervision of
waterways.
Article L215-13 The deviation of the waters of a non-national waterway, of an underground spring, undertaken for reasons of public
interest by a public authority or its representative, by a syndicate or by any other public institution, is authorised by an act declaring the works of public interest.
SECTION III Clearing, maintenance, widening and straightening Articles L215-14 to
L215-24
Subsection 1 Clearing and maintenance Articles L215-14 to
L215-19
Article L215-14 Without prejudice to Articles 556 and 557 of the Code civil and the provisions of chapters I, II, IV, VI and VII of the
present Title, the resident owner is obliged to clear the waterway regularly in order to re-establish its natural width and depth, to maintain the bank by pruning and coppicing of the vegetation, to remove obstructions and debris and to conserve the fauna and flora in order to respect the correct functioning of aquatic ecosystems.
Article L215-15 Clearing and maintenance of non-national waterways as well as associated structures is carried out in accordance
with existing regulations or local practices. However, resident landowners are obliged to have cleared matter on their land only if their composition is not
incompatible with the protection of the soil and water, in particular with regard to heavy metals and other toxic elements they may contain.
The Préfets are responsible, under the authority of the competent minister, for taking the measures necessary to implement these regulations and practices.
Article L215-16 Where there are no existing regulations or local practices, the provisions regulating the syndicates are applied. When it appears necessary to create a group of syndicates, whether they are authorised or created ex officio, in
order to ensure proper care either of the basin to which a non-national waterway belongs, or a part of this basin, or merely of the waterway itself, or a section of the waterway, a syndicate of the various associations may be created ex officio under the conditions set by a Conseil d'Etat decree notwithstanding the absence of unanimous consent of the associations concerned.
The present Article is applied without prejudice to the provisions of Article L. 211-7
Article L215-17
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ENVIRONMENTAL CODE In all cases, the roles for the distribution of sums necessary for the payment of clearing or maintenance work on
structures are defined under the supervision of the Préfet and rendered enforceable by the Préfet. Collection is carried out in the same ways and with the same guarantees as for direct contributions. The prerogative thus created is ranked immediately after that of the Public Treasury.
Article L215-18 All litigations relating to the implementation of work, to the distribution of expenditure and to applications for
reduction or discharge formulated by taxpayers are brought before the administrative courts.
Article L215-19 (Act no. 2003-699 of 30 July 2003 Article 58 Official Journal of 31 July 2003)
For the duration of the works, landowners must allow civil servants and employees, companies and workers, as well as the machinery strictly necessary for the implementation of the works to have free passage over their land, to a maximum width of six metres.
Developed land or land enclosed by walls as of 3 February 1995 as well as courtyards and gardens adjoining dwellings are exempt from right of passage with regard to machinery.
As far as is possible, this right is exercised along the bank of the waterway, with due respect for existing trees and plantations.
Subsection 2 Widening, regularisation and straightening Article L215-20
Article L215-20 Without prejudice to the provisions of Articles L. 214-1 to 214-9, the implementation of widening, regularisation or
straightening of non-national waterways is conducted in accordance with Articles L. 215-16 to L. 215-18.
Subsection 3 Common provisions Articles L215-21 to
L215-24
Article L215-21 I. - A multi-annual programme of maintenance and management, known as a plan simple de gestion (basic
management plan), may be submitted to the Préfet for approval by any landowner residing along a non-national waterway or any syndicate of resident landowners.
II. - The benefit of aid provided by the State and its public institutions relating to clearing, maintenance and the restoration of waterways is granted in priority to landowners who draw up or subscribe to a plan simple de gestion.
III - The Préfet grants approval after obtaining the opinion, where appropriate, of the local water committee set up in accordance with Article L. 212-4.
IV. - The plan comprises: 1° A description of the initial condition of the waterway, of its bed, its banks, and the flora and fauna; 2° An annual programme of clearing and maintenance work, and, if necessary, a programme of restoration work,
specifying, in particular, the techniques used and the consequences for the environment. 3° A funding plan for maintenance, management, and, if appropriate, restoration works. V. - The plan is valid for a period of five years, potentially renewable.
Article L215-22 If the works of clearing, maintenance, widening, regularisation and straightening are related to issues of public
health, the act which makes them compulsory may, after an assessment by the Conseil Général concerned, make part of the expenditure payable by the communes whose territory has been sanitised.
In this case, the same act determines which are the communes concerned, and determines the proportion of the expenditure to be borne by each.
Article L215-23 Landowners residing along disused irrigation canals of which the ownership has reverted from the authorised
syndicates to the landowners, must maintain their function of providing flow for rain water.
Article L215-24 The conditions of application of the present section are set, wherever possible, by a Conseil d'Etat decree.
CHAPTER VI Sanctions Articles L216-1 to
L216-13
SECTION I Administrative sanctions Articles L216-1 to
L216-2
Article L216-1 (Act no. 2005-157 of 23 February 2005 Article 132 IX Official Journal of 24 February 2005)
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ENVIRONMENTAL CODE I. - Independently of legal proceedings, in the event of failure to observe the provisions set out in Articles L. 211-2,
L. 211-3, L. 211-5, L. 211-7, L. 214-1 to L. 214-9, L. 214-11 and L. 214-12 or the regulations and individual rulings made in order to enforce these Articles, the Préfet issues demands that they be satisfied within a fixed period of time.
II. - If, at the end of the defined period, the operator or, in the absence of an operator, the owner of the installation has not complied with this injunction, the Préfet may:
1° Oblige him or her to deposit with a public accountant a sum equivalent to the estimated cost of the works to be carried out, which will be returned progressively as and when the work is carried out; this sum is recovered, where appropriate, according to the same principles as for state debts not affected by tax and property,
2° Order the implementation of the stipulated measures ex officio, without prejudice to Article 211-5, at the expense of the person concerned. The sums deposited in accordance with the provisions laid out above may be used to settle expenditure resulting from the official implementation.
3° Suspend, where appropriate, the authorisation pending the implementation of the conditions imposed.
Article L216-2 Decisions taken in application of Article L. 216-1 may be deferred to the administrative courts in accordance with
Article L. 514-6.
SECTION II Criminal provisions Articles L216-3 to
L216-13
Subsection 1 Investigation of offences Articles L216-3 to
L216-5
Article L216-3 (Act no. 2003-591 of 2 July 2003 Article 31 III 3° Official Journal of 3 July 2003) (Act no. 2005-157 of 23 February 2005 Article 132 IX Official Journal of 24 February 2005)
I. - The following are responsible for the identification and investigation of infringements of Articles L. 211-2, L. 211-3, L. 211-5, L. 211-7, L. 211-12, L. 214-1 to L. 214-9, L. 214-11 to L. 214-13, L. 216-6 to L. 216-8 and L. 216-10 to L. 216-12, in addition to the enactments and decisions for their application:
1° The civil servants and sworn agents, commissioned for this purpose under the conditions set out by a Conseil d'Etat decree, belonging to the State departments responsible for the environment, agriculture, industry, town and country planning, transport, the sea, health, defence, competition, consumer protection and the repression of fraud;
2° The agents mentioned in Article L. 514-5; 3° The engineers and technicians of the laboratoire central and health inspectors form the préfecture de police; 4° Customs officers 5° The civil servants and agents, sworn and commissioned for this purpose from the National Hunting and Wildlife
office 6° Researchers, engineers and technicians, sworn agents of the Institut français de recherche pour l'exploitation de
la mer; 7° Port officers and deputy port officers 8° Engineers serving in the National forestry office and its sworn agents, referred to in Article L. 122-7 of the Code
forestier 9° Sworn agents of the national parks and nature reserves II. - Rangers commissioned for the purpose may be authorised to investigate the offences mentioned in the present
Article under the conditions set by decree.
Article L216-4 With a view to identifying and investigating offences, the agents mentioned in Article L. 216-3 have access to the
premises, facilities and places where the operations at the source of the offences, excluding homes and the parts of premises serving as private dwelling places by the persons concerned. Owners and operators must allow them access. The agents may only have access to these premises between 8 am and 8 pm, or outside these times if the establishment is open to the public, or when an activity is in progress.
The Procureur de la République must be informed prior to any operations envisaged with a view to identifying offences. He or she may oppose these operations.
Article L216-5 (Act no. 2003-591 of 2 July 2003 Article 31 III 3 Official Journal of 3 July 2003) (Act no. 2005-157 of 23 February 2005 Article 132 IX Official Journal of 24 February 2005) (Order no. 2005-805 of 18 July 2005 Article 5 Official Journal of 19 July 2005)
Infringements of the provisions of Articles L. 211-2, L. 211-3, L. 211-5, L. 211-7, L. 211-12, L. 214-1 to L. 214-9, L. 214-11 to L. 214-13, L. 216-6 to L. 216-8 and L. 216-10 to L. 216-12 and enactments for their application are subject official reports which have probative force unless proven otherwise.
Official reports must, on pain of being declared null and void, be sent within five days following the date upon which they are completed, to the Procureur de la République. A copy is also given, within the same period, to the interested party and the administrative authority. Furthermore, within the same period of time, a copy is sent to the President of the
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ENVIRONMENTAL CODE local federation of approved fishing and fish-farming associations and to the President of the approved professional freshwater fishing association when the infringement results in the destruction of spawning grounds or the zones of growth or feeding of the pisciculture fauna, or in seriously harming the ecological continuity or the minimum flow of the water course.
Subsection 2 Criminal sanctions Articles L216-6 to
L216-13
Article L216-6 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
The act of disposing of, discharging or letting flow into surface, underground or seawater within the limits of territorial boundaries, directly or indirectly, one or more substances of any kind whose actions or reactions cause, even if only temporarily, harmful effects on health, fauna and flora, with the exception of damage referred to in Articles 218-73 and L. 432-2, or significant modifications to the normal regimen of water supply or limitations in the use of bathing waters, is punishable by two years of imprisonment and a fine of 75 000 euros. When the discharge is authorised by decree, the provisions of this paragraph are applicable only if the prescriptions of the aforementioned decree are not respected.
The court may also oblige the convicted person to restore the aquatic environment in accordance with the procedure set out in Article L. 216-9.
These same penalties and measures are applicable in the event of discharge or abandonment of waste in large quantities in surface or underground waters or in seawater within the boundaries of territorial limits, on beaches or in coastal areas. These provisions are not applied to discharges from ships at sea.
Article L216-7 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force 1st January 2002)
Without prejudice to the responsibility incurred with regard to the beneficiary of the affected flow, failure to respect the stipulations defined by the declaration of public interest mentioned in Article L. 214-9 is punishable by a fine of 12 000 euros.
Article L216-8 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force 1st January 2002)
I. - Without due authorisation for an act, an operation, an installation or a structure, the following are punishable by two years of imprisonment and a fine of 18 000 euros:
1° Committing such an act; 2° Directing or carrying out such an operation 3° Operating such an installation or structure; 4° Implementing or participating in the implementation of such an installation or structure. II. - For repeat offences, the fine is increased to 150 000 euros. III. In the event of a conviction, the court may order that the operations and use of the structure or installation be
halted. Temporary enforcement of this decision may be ordered. IV. - The court may also demand the measures described in the previous paragraph and demand that the site be
returned to its original condition, within the framework of the procedure set out in Article L. 216-9. V. The court handling proceedings for an infringement of the obligation of declaration may order that the operation
be halted, or that the use of the installation or structure be prohibited, in accordance with the procedure described in Article L. 216-9
Article L216-9 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
In the event of proceedings for infringements of the provisions of Articles L. 216-6 and L. 216-8 or for an infringement of the obligation of declaration or any other obligation resulting from the Articles mentioned in Article L. 216-5, or from the regulations or individual rulings for their application, the court may, after having declared the accused guilty, decide to adjourn the imposition of the penalty, while enjoining the accused to respect the stipulations with regard to which the offence has occurred.
The court stipulates a period of time in which these obligations must be carried out. It can add to the injunction a periodic penalty payment the rate and duration of which are fixed by the court. The amount ranges from 15 euros to 3000 euros per day of delay in the execution of the imposed measures.
The adjournment may only be declared once. It may be ordered even if the accused does not appear in person. In any event, the decision may be accompanied by the temporary execution.
At the subsequent hearing, if the obligations stipulated in the injunction have been carried out within the required time period, the court may either declare the guilty party exempt from the penalty or impose the penalties provided for.
If there has been a delay in carrying out the obligations, the court will liquidate the periodic penalty payment where appropriate, and impose the penalties provided for.
If the obligations have not been carried out, the court will liquidate the periodic penalty payment where appropriate, and impose the penalties provided for, and may then order that the obligations be carried out without any further ruling
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ENVIRONMENTAL CODE required and at the expense of the person convicted of the offence.
The decision with regard to the penalty is taken no later than one year after the decision of adjournment. The rate of the periodic penalty payment as set by the decision of adjournment may not be modified. For the purposes of the liquidation of the periodic penalty payment, the courts determine the non-execution of the
obligations by taking into account, where appropriate, the occurrence of any events for which the convicted person is not deemed responsible.
Article L216-10 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force 1st January 2002)
The use of an installation or structure or the realisation of works in breach of a measure intended to put the aforementioned out of service, a measure of withdrawal or suspension of an authorisation or removal of an installation or a measure of prohibition pronounced in application of the provisions mentioned in Article L. 216-5, is punishable by a penalty of two years of imprisonment and a fine of 150 000 euros.
The same penalties are applicable for the continuing operation or use of an installation or structure without complying with the summons issued by the Préfet, demanding the respect, at the end of a fixed period of time, of the technical prescriptions provided for by the authorisation or regulations to enforce the provisions mentioned in Article L. 216-5.
Preventing agents from carrying out their roles, as specified in Articles L. 211-2 and L. 216-3, is punishable by a penalty of six months imprisonment and a fine of 7 500 euros.
Article L216-11 In the event of a conviction for an infringement of the provisions mentioned in Article L. 216-5, the court may order,
at the expense of the person convicted, the complete or partial publication of its decision and potentially the publication of a message, the terms of which shall be explicitly set by the court, informing the public of the grounds for and the content of its decision, in one or more publications which it designates, as well as publicly displaying the decision under the conditions set out in Article 131-35 of the Code pénal. However, the costs of this publicity may not exceed the amount of the fine incurred.
Article L216-12 I. - Legal entities may be declared responsible under the conditions specified in Article 121-2 of the Code pénal for
infringements of the provisions mentioned in Article 216-5. II. - The penalties incurred by legal entities are: 1° A fine, in accordance with the terms and conditions stipulated in Article 131-38 of the Code pénal; 2° The penalties mentioned in 2°, 3°, 4°, 5°, 6°, 8° and 9° of Article 131-39 of the same Code. III. - The prohibition mentioned in 2° of Article 131-39 of the Code pénal covers the activity during the exercise of
which, or at the time of which exercise, the offence was committed.
Article L216-13 In the event of failure to observe the prescriptions imposed in accordance with Articles L. 211-2, L. 211-3 and L.
214-1 to L. 214-6, all useful measures, including a prohibition to operate the structure or installation in question, may be ordered with a view to halting the disturbance, either by requisition of the ministry acting on request of the administrative authority or an association in compliance with the conditions determined by Article L. 142-2, or ex officio by the examining magistrate dealing with the proceedings or by the Tribunal correctionnel.
The judicial authority adjudicates after having heard the operator or having duly summoned the operator to appear within forty-eight hours. The judicial decision is immediately enforceable and notwithstanding any remedy at law. The order may be withdrawn when the disturbance has ceased.
The provisions of the present Article apply equally to classified facilities as defined in the Title of Book V (Title I).
CHAPTER VII National defence Article L217-1
Article L217-1 A Conseil d'Etat decree sets the conditions of application of Articles L. 214-1 to L. 214-6, L. 214-8, L. 216-3 and L.
216-4 to operations, works or activities concerning installations or buildings under the responsibility of the Minister for defence or subject to the regulations for the protection of national defence secrets.
CHAPTER VIII Special provisions for marine waters and seaways open to maritime navigation Articles L218-1 to
L218-81
SECTION I Pollution by discharge from ships Articles L218-1 to
L218-31
Subsection 1 Civil liability and insurance obligation for ship-owners for damage resulting
from oil pollution Articles L218-1 to L218-9
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ENVIRONMENTAL CODE Article L218-1
All owners of ships transporting a cargo of hydrocarbons in bulk are responsible for damage by pollution resulting from a leak or from discharge of hydrocarbons from such a ship under the conditions and limits determined by the international convention of 27 November 1992 on civil liability for oil pollution damage.
For the application of the present sub-section, the terms or expressions "owner", "ship", "event", "damage by pollution" and "hydrocarbons" are used with the meaning accorded to them in Article 1 of the convention mentioned in the previous paragraph.
Article L218-2 Subject to the provisions of the international convention mentioned in Article L. 218-1 relating to ships which are the
property of the State, the owner of a ship registered in a French port and transporting more than 2 000 tonnes of hydrocarbons in bulk as a cargo may not allow such a ship to trade if it does not possess, under the conditions specified in Article VII of the aforementioned convention, insurance or financial security in sums equivalent to the amount of its liability, for any single incident.
Article L218-3 Wherever the ship is registered, no ship transporting more than 2 000 tones of hydrocarbons in bulk as a cargo may
either have access to French ports or installations or terminals located within territorial or internal waters, or leave them, unless it possess a certificate stating that its owner is covered by civil liability insurance for damage by pollution or financial security under the conditions set out in paragraph I of Article VII of the convention mentioned in Article L. 218-1. If the ship is the property of a State, it must possess a certificate proving that the liability of such a state is covered within the limits set in paragraph I of Article V of the aforementioned convention.
Article L218-4 The provisions of Article L. 218-3 are not applicable to warships and other ships belonging to the State or operated
by the State and assigned exclusively to non-commercial State service.
Article L218-5 Independently of the officers and agents of the Judicial Police Department, the following are authorised to identify
and investigate infringements of the provisions of the present sub-section: 1° The Administrators of Maritime Affairs; 2° The officers of the technical and administrative branch of Maritime Affairs; 3° Inspectors of Maritime Affairs; 4° Technical experts from the Maritime Navigation Safety Service 5° Port officers and deputy port officers; 6° Agents of the Maritime navigation and fishery supervision police 7° Road construction and maintenance department engineers and Public Works engineers as well as agents from
the aforementioned departments commissioned for this purpose; 8° Customs officers; 9° Abroad, concerning ships registered in a French port, French consuls, excluding consular agents.
Article L218-6 Official reports written up in accordance with Article L. 218-5 have probative force unless proven otherwise. They are immediately sent to the Procureur de la République by the agent who has written up the report, who
simultaneously sends copies to the departments concerned.
Article L218-7 Infringements of the provisions of the present sub-section are judged either by the court having jurisdiction over the
place where the offence took place, or by the court in the place of residence of the offender. Moreover, if the ship is French, the competent court is that having jurisdiction in the area where the ship is
registered, or if foreign, that where the ship can be found. In the absence of any other court, the tribunal de grande instance de Paris has jurisdiction.
Article L218-8 (Order no. 2000-916 of 19 September Article 3 Official Journal of 22 September 2000 in force 1st January 2002)
The following are punishable by a fine of 75 000 euros: 1° An owner of a ship allowing such a ship to trade in violation of the obligations set out in Article L. 218-2; 2° Leaving or entering a port or terminal installation in violation of the obligations set out in Article L. 218-3.
Article L218-9 As and when necessary, a Conseil d'Etat decree sets the conditions of application of the present sub-section.
Subsection 2 Criminal provisions relating to pollutant discharges from ships Articles L218-10 to
L218-31
Paragraph 1 Penalties Articles L218-10 to
L218-25
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ENVIRONMENTAL CODE Article L218-10 (Order no. 2000-916 of 19 September Article 3 Official Journal of 22 September 2000 in force 1st January 2002) (Act no. 2001-380 of 3 May 2001 Article 1 Official Journal of 4 May 2001) (Act no. 2004-204 of 9 March 2004 Article 30 1, 2 Official Journal of 10 March 2004)
I. - Committing an infringement of the provisions of rules 9 and 10 of annexe 1 of the convention, relating to the prohibition of hydrocarbon discharge as defined in 3 of Article 2 of the aforementioned convention is punishable by ten years of imprisonment and a fine of 1,000,000 euros, for any captain of a French ship subject to the provisions of the international convention for the prevention of pollution from ships, as established in London on 2 November 1973, and as modified by the protocol of 17 February 1978 and by its subsequent modifications legally approved or ratified, falling under the following categories:
1° Tankers with a gross tonnage equal to or greater than 150 tons 2° Vessels other than tankers with a gross tonnage equal to or greater than 500 tons. II. - The penalties provided for in the present Article apply to the person responsible on board platforms registered in
France for discharges carried out at sea in violation of rules 9 and 10 of Annexe I of the aforementioned convention. III. - The fine stipulated in I may be increased, over and above this amount, to a sum equivalent to the value of the
ship or four times the value of the cargo transported or the freight.
Article L218-11 (Order no. 2000-916 of 19 September 2000 Article 1 I Official Journal of 22 September 2000 in force 1st January 2002) (Act no. 2001-380 of 3 May 2001 Article 2 Official Journal of 4 May 2001) (Act no. 2004-204 of 9 March 2004 Article 30 1, 3 Official Journal of 10 March 2004)
Committing one of the offences described in Article L. 218-10 is punishable by seven years of imprisonment and a fine of 700,000 Euros, for any captain of a French ship subject to the provisions of the convention mentioned in Article L. 218-10 belonging to the following categories:
1° Tankers with a gross tonnage lower than 150 tons: 2° Ships other than tankers with a gross tonnage lower than 500 tons and engine power of above 150 kilowatts.
Article L218-12 (Act no. 2004-204 of 9 March 2004 Article 30 1 Official Journal of 10 March 2004)
The penalties provided for in Article L. 218-11 apply for discharges at sea in violation of rules 9 and 10 of Annexe I of the convention mentioned in Article L. 218-10, to the person responsible for the operation of all port machinery, barges or fluvial tank vessels, whether they are self-propelled, towed or pushed.
Article L218-13 (Order no. 2000-916 of 19 September 2000 Article 1 I Official Journal of 22 September 2000 in force 1st January 2002) (Act no. 2001-380 of 3 May 2001 Article 3 Official Journal of 4 May 2001) (Act no. 2004-204 of 9 March 2004 Article 30 1, 4 Official Journal of 10 March 2004)
Any captain or person responsible on board a French ship subject to the provisions of the convention mentioned in Article L. 218-10 not belonging to the categories of ships defined in Articles L. 218-10 and L. 218-11, committing one of the offences provided for in Article L. 218-10 is punishable by a fine of 6000 Euros and, moreover, in the event of a repeat offence, one year of imprisonment.
Article L218-14 (Act no. 2004-204 of 9 March 2004 Article 30 1 Official Journal of 10 March 2004)
Any captain of a French ship subject to the provisions of Annexe II of the convention mentioned in Article L. 218-10, transporting harmful liquid substances in bulk as defined in 1 of rule 3 of the aforementioned annexe, committing an infringement of the dispositions of 1, 2, 7, 8 and 9 of rule 5 of the aforementioned annexe relating to the prohibition to discharge harmful liquid substances, defined in 3 of Article 2 of the convention, is punishable by the penalties provided for in Article L. 218-10.
Article L218-15 (Act no. 2004-204 of 9 March 2004 Article 30 1 Official Journal of 10 March 2004)
Any captain of a French ship subject to the provisions of Annexe II of the convention mentioned in Article L. 218-10, transporting harmful liquid substances in bulk as defined in 1 of rule 3 of the aforementioned annexe, committing an infringement of the provisions of 3, 4, 6 and 11 of rule 5 of the aforementioned annexe relating to the prohibition to discharge harmful liquid substances, defined in 3 of Article 2 of the convention, is punishable by the penalties provided for in Article L. 218-11.
Article L218-16 (Act no. 2004-204 of 9 March 2004 Article 30 1 Official Journal of 10 March 2004)
Any captain or person responsible on board French ships subject to the convention mentioned in Article L. 218-10, committing an offence defined in Articles L. 218-10, L. 218-14, L. 218-15, L. 218-17 and L. 218-18 in navigable waterways up to the limits of maritime navigation, is punishable by the penalties provided for in Articles L. 218-10, L. 218-11, L. 218-13, L. 218-14, L. 218-15, L. 218-17 and L. 218-18.
Article L218-17 (Act no. 2004-204 of 9 March 2004 Article 30 1 Official Journal of 10 March 2004)
Any captain of a French ship, depositing harmful substances transported in packages or containers, movable tanks,
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ENVIRONMENTAL CODE road tankers or rail tankers into the sea in violation of the provisions of rule 7 of annexe III of the convention mentioned in Article L. 218-10 is punishable by the penalties provided for in Article L. 218-13.
Article L218-18 (Act no. 2004-204 of 9 March 2004 Article 30 1 Official Journal of 10 March 2004)
Any captain or person in charge on board a French ship subject to the provisions of the convention mentioned in Article L. 218-10, committing an infringement of the provisions of rules 3, 4, and 5 of annexe V, relating to the prohibitions of deposits, within the meaning defined in 3 of Article 2 of the convention, of garbage, as defined in 1 of rule 1 of the aforementioned annexe, is punishable by the penalties provided for in Article L. 218-11.
Article L218-19 (Order no. 2000-916 of 19 September 2000 Article 1 I Official Journal of 22 September 2000 in force on 1st January 2002) (Act no. 2001-380 of 3 May 2001 Article 4 Official Journal of 4 May 2001) (Act no. 2004-204 of 9 March 2004 Article 30 1 Official Journal of 10 March 2004)
For any captain of a French ship, or any other person in charge of the ship, within the meaning defined by Article 1 of the aforementioned protocol, having suffered one of the incidents mentioned in Protocol 1 of the convention mentioned in Article L. 218-10, at sea or in inland waters and French navigable waterways up to maritime navigation limits, failing to write up and transmit a report in accordance with the provisions of the aforementioned protocol, is punishable by two years of imprisonment and a fine of 180 000 euros.
Article L218-20 (Act no. 2001-380 of 3 May 2001 Article 5 Official Journal of 4 May 2001) (Act no. 2004-204 of 9 March 2004 Article 30 1 Official Journal of 10 March 2004)
Without prejudice to the penalties provided for in the present sub-section with regard to the captain or person responsible on board, the penalties provided for in the aforementioned sub-section apply either to the owner, or to the operator or their legal representative or de facto director in the case of a legal entity, or to any person other than the captain or person on board exercising, either in law or in fact, power of control in the management or use of the ship or platform, when the aforementioned owner, operator or person has brought about a discharge carried out in violation of Articles L. 218-10 to 218-19 or has not taken the necessary steps in order to avoid it.
Article L218-21 (Act no. 2003-346 of 15 April 2003 Article 3 Official Journal of 16 April 2003) (Act no. 2004-204 of 9 March 2004 Article 30 1, 5 Official Journal of 10 March 2004)
In the economic zone off the coasts of the territory of the Republic, and the ecological protection zone defined by Act no. 76-655 of 16 July 1976 relating to the economic zone and the ecological protection zone off the coasts of the territory of the Republic, the territorial waters, inland waters and French navigable waterways up to the limits of maritime navigation, the provisions of the present sub-section apply, under the conditions set out in Articles L. 218-10, L. 218-11, L. 218-13 to L. 218-19 and L. 218-22, to foreign ships and platforms even if registered in a territory under a government which is not a signatory to the convention mentioned in Article L. 218-10.
However, only the fines provided for in Articles L. 218-10, L. 218-11 and L. 218-13 to L. 218-19 and L. 218-22 may be pronounced when the offence occurs in the economic zone and the ecological protection zone off the coasts of the territory of the Republic.
Article L218-22 (Act no. 2004-204 of 9 March 2004 Article 30 1, 6 Official Journal of 10 March 2004)
I. -Without prejudice to the penalties provided for in the present sub-section regarding violations of the regulations on discharges, the fact of a captain or person in charge of piloting or operation on board French or foreign ships or platforms having caused, by imprudence, negligence or failure to observe the laws and regulations under the conditions defined in article 121-3 of the Code pénal, an accident at sea, as defined by the convention of 29 November 1969 on intervention on the high seas, causing or being able to cause hydrocarbon pollution, or not having taken the necessary steps to avoid it, is punishable when the aforementioned accident has caused the pollution of territorial waters, inland waters or navigable waterways up to the limit of maritime navigation.
When the offence has been committed involving a ship entering into the categories defined in Article L. 218-10 or a platform, it is punishable by two years' imprisonment and a fine of 200,000 euros.
When the offence has been committed involving a ship or machine entering into the categories defined in Article L. 218-11 and L. 218-12, it is punishable by one year's imprisonment and a fine of 90,000 euros.
When the offence has been committed involving a ship or machine entering into the categories defined in Article L. 218-13, it is punishable by a fine of 4,000 euros.
II. - When the accident at sea described in I, directly or indirectly either originates from the clearly deliberate violation of a particular safety or prudence obligation imposed by the law or the regulations, or results in irreversible or particularly serious damage to the environment, the sentences are increased to:
1 Five years' imprisonment and a fine of 500,000 euros when the offence has been committed involving a ship entering into the categories defined in Article L. 218-10 or a platform;
2 Three years' imprisonment and a fine of 300,000 euros when the offence has been committed involving a ship or machine entering into the categories defined in Article L. 218-11 and L. 218-12;
3 A fine of 6,000 euros when the offence has been committed involving a ship or machine entering into the
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ENVIRONMENTAL CODE categories defined in Article L. 218-13.
When the offence has been committed involving a ship entering into the categories defined in Articles L. 218-10, L. 218-11 and L. 218-12 or a platform, the fine may be increased, over and above this amount, to a sum equivalent to the value of the ship or twice the value of the cargo transported or the freight.
III. - When both circumstances described in the first paragraph of II occur at the same time, the sentences are increased to:
1 Seven years' imprisonment and a fine of 700,000 euros when the offence has been committed involving a ship entering into the categories defined in Article L. 218-10;
2 Five years' imprisonment and a fine of 500,000 euros when the offence has been committed involving a ship or machine entering into the categories defined in Article L. 218-11 and L. 218-12.
The fine may be increased, over and above this amount, to a sum equivalent to the value of the ship or three times the value of the cargo transported or the freight.
IV. - The penalties provided for in I and II are applicable either to the owner or to the operator or their legal representative or de facto director in the case of a legal entity, or to any person other than the captain or the person responsible on board, exercising, either in law or in fact, power of control or management in the operation of the ship or platform, when the aforementioned owner or operator or person has caused pollution under the conditions defined in the present article.
V. - The discharge, further to measures intended to avoid serious and imminent danger threatening the safety of ships, human life or the environment is not punishable by virtue of the present Article.
Article L218-23 (Act no. 2004-204 of 9 March 2004 Article 30 1 Official Journal of 10 March 2004)
The provisions of Articles L. 218-10 to 218-20 inclusive and L. 218-22 are not applicable to ships, platforms and maritime or fluvial machinery of any kind belonging to the Navy, the Police and Gendarmerie, to customs, to the administration des affaires maritimes or generally, to all State-owned ships used for policing or public service operations at sea.
Article L218-24 (Act no. 2004-204 of 9 March 2004 Article 30 1, 7 Official Journal of 10 March 2004)
The court may, in consideration of the de facto circumstances, and in particular of the working conditions of the interested party, rule that the payment of fines imposed on a captain or person responsible on board, in accordance with Articles L. 218-10 to L. 218-22, is wholly or partly due by the operator or owner.
The court may use the faculty provided for in the previous paragraph only if the owner or operator has been summoned to the hearing.
Persons guilty of offences provided for by the present sub-section also incur, as an additional penalty, the penalty of public display or publication of the decision pronounced under the conditions set out in Article 131-35 of the Code pénal.
Article L218-25 (Act no. 2001-380 of 3 May 2001 Article 7 Official Journal of 4 May 2001) (Act no. 2004-204 of 9 March 2004 Article 30 1, 8 Official Journal of 10 March 2004)
I. - Legal entities may be declared criminally responsible, under the conditions set out in Article 121-2 of the Code pénal, for offences defined in the present sub-section. They incur a fine, in accordance with the terms and conditions set out in Article 131-38 of the Code penal.
II. - For the offences defined in articles L. 218-10 to L. 218-22, they also incur the sentence mentioned in 9° of Article 131-39 of the Code pénal
Paragraph 2 Proceedings Articles L218-26 to
L218-31
Article L218-26 (Act no. 2003-591 of 2 July 2003 Article 31 III 4° Official Journal of 3 July 2003) (Act no. 2004-204 of 9 March 2004 Article 30 1 Official Journal of 10 March 2004)
I.- Independently of officers and agents of the Judicial Police Department exercising their powers in accordance with the Code de procédure pénale, the following are authorised to investigate infringements of regulations 9, 10, and 20 of Annexe I, of regulation 5 of Annexe II, of regulation 7 of annexe III, of regulations 3, 4, and 5 of Annexe V and of protocol I of the international convention for the prevention of pollution by ships mentioned in Article L. 218-10, infringements of the provisions of the present sub-section as well as infringements of the regulatory provisions for their application:
1° The administrators of Maritime Affairs; 2° Officers of the technical and administrative corps of Maritime Affairs; 3° Inspectors of Maritime Affairs; 4° Technical experts from the safety of maritime navigation department; 5° Inspectors of Maritime Affairs; 6° On-board personnel for assistance and supervision of Maritime Affairs; 7° Civil servants and sworn and commissioned agents of the maritime services and of autonomous ports; 8° Transport department engineers and public works engineers assigned to the direction régionale de l'industrie, de
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ENVIRONMENTAL CODE la recherche et de l'environnement concerned
9° Port officers and deputy port officers; 10° Sworn researchers, engineers and technicians of the Institut français de recherche pour l'exploitation de la mer; 11° Customs officers 12° French consuls abroad, excluding consulate employees. II. - In addition, infringements of the provisions of regulations 9 and 10 of annexe I, of regulation 5 of annexe II, of
regulation 7 of annexe III and regulations 3, 4, and 5 of annexe V of the convention mentioned above may be investigated by commanders, first officers or second officers of French Navy vessels and Navy aircraft commanders.
Article L218-27 (Act no. 2004-204 of 9 March 2004 Article 30 1 Official Journal of 10 March 2004)
The following are responsible for identifying violations constituting sea pollution offences, collecting all information for this purpose with a view to identifying the offenders and reporting them to either an officer or an inspector of the Judicial Police Department exercising his or her powers in accordance with the provisions of the Code de procedure pénale
1° Commanders of State oceanographic ships; 2° Commanders of civil defence aircraft and State aircraft assigned to the protection of maritime waters: 3° Agents of the lighthouse service 4° Agents of the Institut français de recherche pour l'exploitation de la mer 5° Agents of the police de la pêche fluviale
Article L218-28 (Act no. 2004-204 of 9 March 2004 Article 30 1 Official Journal of 10 March 2004)
Official reports made by the agents mentioned in Article L. 218-26 have probative force unless proven otherwise. They are immediately sent to the Director of public Prosecution by the agent who has made the report, who also simultaneously sends a copy to the administrator of Maritime Affairs when the report concerns ships or platforms, or to the road construction and maintenance department engineer in charge of the maritime department if it concerns port machinery, barges or fluvial tank vessels.
Article L218-29 (Act no. 2001-380 of 3 May 2001 Article 6 Official Journal of 4 May 2001) (Act no. 2003-346 of 15 April 2003 Article 4 Official Journal of 16 April 2003) (Act no. 2004-204 of 9 March 2004 Article 30 1, 9 Official Journal of 10 March 2004)
The rules relating to the competence of specialised criminal jurisdictions in order to ascertain the offences provided by the present sub-section are set by articles 706-107 to 706-111 of the Code de procédure pénale, reproduced hereunder:
Article 706-107. - For the investigation, prosecution, and, in the case of misdemeanours, judgment of cases of pollution of marine waters and navigable waterways provided for by sub-section 2 of section 1 of Chapter VIII of title 1 of Book II of the Environmental Code, and which are committed in territorial waters, interior waters, and waterways, the jurisdiction of a district court may be extended to cover the jurisdiction of one or more appeal courts.
The provisions of the first paragraph also apply when the offences specified therein, except for that provided by article L.218-22 of the Environmental Code, are committed in the exclusive economic zone or in an area of ecological protection.
However, for cases which are or which appear to be extremely complex, the district prosecutor nearest the district court mentioned in the first paragraph may order the investigating judge to relinquish the case to the district court of Paris under the conditions and in accordance with the terms set out by articles 706-110 and 706-111.
This jurisdiction extends to related offences. A decree determines the list and the jurisdiction of these maritime littoral courts, which have prosecution
departments, investigation teams and judges to take cognizance of these offences. Article 706-108. - For the investigation, prosecution, and the judgment of the misdemeanours outlined in article
706-107, committed on board French vessels outside maritime areas under French jurisdiction, the district court of Paris has jurisdiction.
The district court of Paris is also competent for the investigation, prosecution, and the judgment of the offence set out in article L.218-22 of the Environmental Code, as well as related offences, where these offences are committed in the exclusive economic zone or in an area of ecological protection.
Article 706-109. - The district prosecutor, the investigating judge, and the specialised correctional team of the district court mentioned in article 706-107 are competent over the whole of the jurisdiction determined in accordance with this article, concurrently with their competence under articles 43, 52, 382 and 706-42.
They also have, under the same conditions, concurrent jurisdiction over matters arising within the following criteria of competence:
1° the place of registration of the vessel, equipment, or oil rig; 2° the place where the vessel, equipment or oil-rig is or may be found. The specialist court seised remains competent, whatever the charges formulated when the case is dealt with or
decided. However, if the facts constitute a petty offence, the investigating judge rules the transfer of the case before the competent police court in accordance with article 522.
Article 706-110. - The district prosecutor of a district court other than those mentioned in article 706-107 may, for
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ENVIRONMENTAL CODE the offences falling within this article, request the investigating judge to relinquish a case to the competent investigating court in accordance with this article. The parties are informed of this in advance and are invited by the investigating judge to make their observations. A ruling is made no earlier than eight days and no later than one month following this notification.
Where the investigating judge decides to relinquish a case, his ruling does not come into effect until five days later, in accordance with article 706-111. Where an appeal is lodged in accordance with this article, the investigating judge remains seised until he has notice of a ruling of the investigating chamber that has become final, or a ruling of the criminal chamber of the Court of Cassation.
As soon as the ruling has become final, the district prosecutor sends the case file to the district prosecutor of the competent district court in accordance with article 706-109.
The provisions of the present article are applicable before the investigating chamber. Article 706-111. - At the request of the public prosecutor or of the parties, the ruling delivered in accordance with
article 706-110 may, to the exclusion of any other means of appeal, be referred within five days of its notification, either to the investigating chamber of the specialist court to which the case was relinquished, or not relinquished if it is within the jurisdiction of the appeal court in which the court initially seised of the case is located, or, in other cases, to the criminal chamber of the Court of Cassation. Within eight days of receiving the case file, the investigating or criminal chamber nominates the investigating judge responsible for pursuing the investigation. Where the investigating judge has not delivered his ruling within the one-month time limit provided for by the first paragraph of article 706-110, the public prosecutor may also directly seise the investigating chamber or the criminal chamber of the Court of Cassation.
The investigating or criminal chamber's ruling is brought to the attention of the investigating judge as well as the public prosecutor, and notice of it is served to the parties.
The provisions of the present article apply to rulings made by the investigating chamber and delivered on the basis of the last paragraph of article 706-110. In such cases, the appeal is then brought before the criminal chamber.
Article L218-30 (Act no. 2001-380 of 3 May 2001 Article 8 Official journal of 4 May 2001) (Act no. 2004-204 of 9 March 2004 Article 30 1 Official Journal of 10 March 2004)
The ship which was used to commit one of the offences defined in Articles L. 218-10 to L. 218-22 may be immobilised following a decision by the Procureur de la République or the examining magistrate concerned.
This immobilisation is carried out at the expense of the ship owner At any time, the legal authority having jurisdiction may order that the immobilisation be lifted if a guarantee is paid,
the amount of which is fixed and the terms and conditions defined by the same legal authority. The conditions of allocation, use and restitution of the guarantee are regulated in accordance with the provisions of
Articles 142, 142-2 and 142-3 of the Code de procédure pénale.
Article L218-31 (Act no. 2004-204 of 9 March 2004 Article 30 1 Official Journal of 10 March 2004)
If the acts constituting offences listed in Articles L. 218-10 to L. 218-22 have caused damage to the public maritime domain, the administration may prosecute only for compensation for this damage before the administrative court in accordance with the procedure for contraventions de grande voirie.
SECTION II Pollution due to operations of exploration or exploitation of the seabed or under
the seabed Articles L218-32 to L218-41
Article L218-32 Without prejudice to the enforcement of the provisions of the Code minier, in particular of Articles 79, 84 and 85 and
of its texts of application to all activities of exploration and exploitation of the natural resources of the continental shelf, any discharge into the sea of hydrocarbons or mixtures of hydrocarbons likely to affect public health, marine flora and fauna, the economic development and the development of tourist activity in coastal regions is prohibited.
Discharges which are the direct cause of operations of exploration must be devoid of hydrocarbons. Discharges which are the direct cause of operations of exploitation, including storage, may not have an average
hydrocarbon content of over 20 parts per million, or have for effect the discharge into the sea of an average volume of hydrocarbons of over 2 centilitres per day per hectare of the surface of the exploitation rights.
More restrictive provisions than those provided for in the above paragraph may be officially imposed depending on local conditions or conditions specific to the exploitation or the protection of the environment.
No operation may be undertaken before a statement of the biological and ecological condition of the marine environment in the zone covered by the aforementioned rights has been written up at the expense of the holder of the exploitation rights. This statement must be renewed at least once per year during the period of validity of the exploitation rights.
A Conseil d'Etat decree sets the terms and conditions of application of the present Article.
Article L218-33 The provisions of sub-section 2 of section 1 of the present Chapter are applicable: 1° to the following installations or facilities where these installations or facilities are not undergoing exploration or
exploitation: a) to platforms and other exploration or exploitation machinery, as well as their annexes
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ENVIRONMENTAL CODE b) to sea vessels participating directly in operations of exploration or exploitation. 2° to operations of the aforementioned installations or facilities not directly related to activities of exploration or
exploitation.
Article L218-34 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force 1st January 2002)
I. - Committing an infringement of Article 218-32 is punishable by two years of imprisonment and a fine of 18 000 euros.
II. - When the offence is committed by order of the holder of the exploration or exploitation rights, or his or her representative, or the person responsible on board these installations and facilities for conducting the exploration or exploitation works, including storage, these persons are punishable by double the penalties provided for in the previous paragraph.
III. - Any representative of the holder of the exploration or exploitation rights who, having responsibility for the aforementioned operations, does not give the person directly in charge on site for conducting the works written instructions to observe the provisions of paragraphs 1 to 4 of Article L. 218-32, is considered to be an accessory to the offence.
IV. - However, the offence is not constituted when, all necessary measures having been taken to observe Article L. 218-32:
1° The discharge is intended to ensure the safety of an installation or facility referred to in Article L. 218-33, or in order to prevent it from suffering serious damage threatening the safety of persons or the protection of the environment, or in order to save human lives at sea;
2° The spillage originates from an unforeseeable and inevitable leak or damage, if all necessary measures have been taken after the damage or the discovery of the leak in order to prevent, halt or reduce this spillage in order to limit the consequences thereof.
Article L218-35 The provisions of Articles L. 218-32 to L. 218-34 are applicable in territorial waters, subject to more restrictive
measures which may be imposed in application of the provisions of the Code minier or under measures for the protection of fishing and marine culture.
Article L218-36 (Act no. 2003-591 of 2 July 2003 Article 31 III 4° Official Journal of 3 July 2003)
I. - The following are responsible for identifying the offences provided for in the present section: 1° Officials and agents of the Judicial Police Department 2° The administrators of Maritime Affairs 3° Officers of the technical and administrative corps of Maritime Affairs 4° Commanders, first officers or second officers of ships of the French Navy; 5° Inspectors of Maritime Affairs 6° Transport Department engineers or public works engineers assigned to the relevant direction régionale de
l'industrie, de la recherche et de l'environnement; 7° Road construction and maintenance department engineers and public works engineers assigned to maritime
services as well as agents of the aforementioned services commissioned for this purpose; 8° Port officers and deputy port officers; 9° Customs officers II. - The following are responsible for identifying sea pollution offences, collecting all information for this purpose
with a view to identifying the offenders and reporting them either to an administrator of maritime affairs, an officer of the technical and administrative corps of maritime affairs or an inspector of maritime affairs, or to an officer of the Judicial Police Department:
1° Agents of the police de la navigation et de la surveillance des pêches maritimes; 2° Commanders of State oceanographic ships 3° Commanders of military aircraft, civil defence aircraft and state aircraft assigned to the supervision of maritime
waters; 4° Agents of the lighthouse service; 5° Agents of the Institut français de recherche pour l'exploitation de la mer.
Article L218-37 Official reports made in accordance with Article L. 218-36 have probative force unless proven otherwise. They are
immediately sent to the Procureur de la République by the agent who has written up report, who simultaneously sends a copy to the competent head of the mineralogical department and to the chief of the Maritime Affairs service.
Article L218-38 Even in the event of criminal proceedings, the administration retains the possibility to prosecute for compensation of
damage caused to the public domain in accordance with the procedure for contraventions de grande voirie.
Article L218-39 The installations and facilities defined in Article L. 218-33, and the safety zones which may be established up to a
distance of 500 metres from each point of the exterior of these installations and facilities, are subject to criminal legislation and criminal procedure in force at the headquarters of the court of first instance or ordinary court of first
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ENVIRONMENTAL CODE instance under whose jurisdiction they fall.
Article L218-40 The conditions under which the present section is adapted to operations carried out on the continental shelf
adjoining overseas local authorities and, as and when necessary, on territorial seabed, are set by a Conseil d'Etat decree.
The provisions of the present section are applicable to the seabed and below the seabed in the economic zone defined in Article 1 of Act no. 76-655 of 16 July 1976 relating to the economic zone off the coasts of the Republic.
Article L218-41 The terms and conditions of application of the present Article are set by Conseil d'Etat decree, particularly
concerning Article L. 218-39.
SECTION III Pollution by dumping Articles L218-42 to
L218-58
Subsection 1 General Provisions Articles L218-42 to
L218-47
Article L218-42 (Order no. 2005-805 of 18 July 2005 Article 12 Official Journal of 19 July 2005)
The provisions of the present section apply to: 1 French ships, aircraft, platforms or other structures in all marine waters and on the seabeds and their subsoils; 2 Foreign ships, aircraft, platforms or other structures in the economic zone, the ecological protection zone, the
territorial sea and the French inland waters, as well as on the seabeds and their subsoils;
Article L218-43 (Order no. 2005-805 of 18 July 2005 Article 12 Official Journal of 19 July 2005)
The dumping of waste or other materials, as defined in article 1 of the Protocol of 7 November 1996 to the London Convention of 1972 on the prevention of sea pollution resulting from the dumping of waste, is prohibited.
Article L218-44 (Order no. 2005-805 of 18 July 2005 Article 12 Official Journal of 19 July 2005)
I. - Notwithstanding article L. 218-43, the following may be authorised: 1 The dumping of dredged elements; 2 The dumping of ships, by the State representative at sea, in compliance with the international treaties and
agreements in force. II. - The dumping of dredged elements is subject to the provisions of articles L. 214-1 to L. 214-4 and L. 214-10. III. - The dumping permits properly issued before publication of Order no. 2005-805 of 18 July 2005 are maintained
until their expiry, but may not exceed a period of ten years.
Article L218-45 (Act no. 2003-346 of 15 April 2003 Article 5 Official Journal of 16 April 2003) (Order no. 2005-805 of 18 July 2005 Article 12 Official Journal of 19 July 2005)
The provisions of articles L. 218-43 and L. 218-44 are not applicable when, in the event of serious danger, dumping appears to be the only way to save human lives or to ensure the safety of ships, aircraft, platforms or other structures. Where possible, it is carried out in such a way as to reconcile these safety imperatives with the requirements to protect the marine fauna and flora.
Article L218-46 (Order no. 2005-805 of 18 July 2005 Article 12 Official Journal of 19 July 2005)
In all cases, the rights of third parties with regard to pollution offenders are and remain reserved.
Article L218-47 (Order no. 2005-805 of 18 July 2005 Article 12 Official Journal of 19 July 2005)
Even in the event of criminal proceedings, the administration retains the possibility to prosecute for compensation of damage caused to the public domain in accordance with the procedure for contraventions de grande voirie.
Subsection 2 Criminal provisions Articles L218-48 to
L218-57
Article L218-48 (Order no. 2000 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Order no. 2005-805 of 18 July 2005 Article 13 Official Journal of 19 July 2005)
For any captain of a French ship or any commander of a French aircraft or any person responsible, on platforms or other structures, for conducting dumping operations, offences with regard to the provisions of Articles L. 218-43 and L.
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ENVIRONMENTAL CODE 218-44 is punishable by two years of imprisonment and a fine of 18,000 euros
Persons guilty of offences provided for by the present section also incur, as an additional penalty, the penalty of public display or publication of the ruling pronounced, in accordance with Article 131-35 of the Code pénal.
When the offence takes place in the economic zone or in the ecological protection zone off the coasts of the territory of the Republic, only the fines in application of the convention signed in Montego Bay on 10 December 1982 may be pronounced against foreign nationals.
Article L218-49 (Order no. 2000-916 of 19 September 2000 Article. 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Order no. 2005-805 of 18 July 2005 Article 16 Official Journal of 19 July 2005)
In the cases provided for in Article L. 218-45, the State representative at sea must be informed of dumping operations at the earliest possible moment by one of the persons referred to in Article L. 218-48, under penalty of a fine of 3 750 euros.
This notification must mention precisely the circumstances in which the dumping has occurred.
Article L218-50 (Order no. 2005-805 of 18 July 2005 Article 16 Official Journal of 19 July 2005)
Without prejudice to the penalties provided for by Article L. 218-48, if one of the offences has been committed by order of the owner or operator of the ship, aircraft, platform or other structure, this owner or operator is punished by double the penalties provided for in the aforementioned Article.
Any owner or operator of a ship, aircraft, platform or other structure who has not given the captain, commander on board or person responsible for conducting dumping operations on the platform or other structure written instructions to observe the provisions of the present section may be considered an accessory to the offences provided for therein.
When the owner or operator is a legal entity, the responsibility provided for in the two paragraphs above falls to the legal representatives or de facto directors responsible for the management or administration of any person or persons authorised by them.
Article L218-51 (Order no. 2005-805 of 18 July 2005 Article 16 Official Journal of 19 July 2005)
The penalties provided for in Article L. 218-48 apply against any captain of a ship and any commander on board loading in French territory, without being able to show one of the authorisations provided for in the previous section, waste or other substances intended for dumping at sea.
Article L218-52 (Order no. 2005-805 of 18 July 2005 Article 14 Official Journal of 19 July 2005)
In the event of ignorance of one or more of the conditions determined by the authorisations provided for in Article L. 218-44, the penalties set out in Article L. 218-48 are applicable, depending on each case, to the holder of the authorisation, to the owner of the waste or other substances intended for dumping at sea, or to the persons referred to in Articles L. 218-48, L. 218-50 and L. 218-51.
Article L218-53 (Act no. 2003-591 of 2 July 2003 Article 31 III 4° Official Journal of 3 July 2003)
I. Independently of officers and agents of the Judicial Police Department, the following are authorised to identify and investigate infringements of the provisions of the present Article:
1° The administrators of Maritime Affairs, inspectors of Maritime Affairs, officers of the technical and administrative corps of Maritime Affairs, technical experts from the safety service of maritime navigation;
2° Road construction and maintenance department engineers and Public Works engineers assigned to maritime services as well as agents from the aforementioned services commissioned for this purpose;
3°Transport department engineers and public works engineers assigned to the direction régionale de l'industrie, de la recherche et de l'environnement concerned;
4° Port officers and deputy port officers, agents from the police de la navigation et de la surveillance des pêches maritimes;
5° Commanders, First Officers or Second officers of French Navy vessels 6° Civil servants from the technical corps of civil aviation commissioned for this purpose, road construction and
maintenance department engineers and Public Works engineers responsible for air bases; 7° Defence Corps engineers, commissioned for this purpose, aircraft technicians commissioned for this purpose; 8° Sworn researchers, engineers and technicians of the Institut français de recherche pour l'exploitation de la mer; 9° Customs officers 10° Abroad, French consuls, excluding consular employees II. - The following are responsible for identifying infringements of the provisions of the present section, collecting for
this purpose all information with a view to identifying the offenders, and informing either an administrator of Maritime Affairs, an officer of the technical and administrative corps of Maritime Affairs, a road construction and maintenance department engineer or Public Works engineer assigned to a maritime service, or an officer of the Judicial Police Department:
1° Commanders of State oceanographic ships; 2° Commanders of military aircraft, civil defence aircraft, and State aircraft assigned to the surveillance of maritime
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ENVIRONMENTAL CODE waters;
3° Agents of the Institut français de recherche pour l'exploitation de la mer.
Article L218-54 Official reports made in accordance with Article L. 218-53 have probative force unless proven otherwise. They are
immediately sent to the Director of public Prosecution by the agent having made the report who also simultaneously sends a copy to the services concerned.
Article L218-55 (Order no. 2005-805 of 18 July 2005 Article 16 Official Journal of 19 July 2005)
When the needs of the enquiry or of the information as well as the seriousness of the offence require it, the ship, aircraft, platform or other structure involved in committing the offences referred to in Articles L. 218-48, L. 218-50, L. 218-51 and L. 218-52 may be immobilised by decision of the Procureur de la République or examining magistrate dealing with the case.
At any time, the competent legal authority may order the withdrawal of the immobilisation if a guarantee is paid, for which the amount, terms and conditions of payment are set by this authority.
The conditions of allocation, use and restitution of the guarantee are regulated in accordance with the provisions of Articles 142, 142-2 and 142-3 of the Code de procédure pénale.
Article L218-56 (Order no. 2005-805 of 18 July 2005 Article 16 Official Journal of 19 July 2005)
I. - Infringements of the provisions of the present section are judged either by the court having jurisdiction over the place where the offence occurred, or the court having jurisdiction over the place of residence of the offender.
II. - The following are also competent: 1° If the offence involves a ship, platform or other structure, either the court having jurisdiction over its place of
registration if it is French, or the court having jurisdiction over the place where it is located if it is foreign, or if it is an unregistered platform or other structure;
2° If the offence involves an aircraft, the court having jurisdiction over the place where the aircraft landed after committing the offence.
III. - In the absence of another court, the Paris court of first instance is competent.
Article L218-57 I. - Legal entities may be declared criminally liable, under the conditions set out in Article 121-2 of the Code pénal,
for infringements of the provisions of the present section. II. - Penalties incurred by legal entities are: 1° A fine, in accordance with the terms and conditions set out in Article 131-38 of the Code pénal; 2° The penalties mentioned in 2°, 3°, 4°, 5°, 6°, 8° and 9° of Article 131-39 of the same Code. III. - The prohibition mentioned in 2° of Article 131-39 of the Code pénal concerns the activity carried out during or at
the time of the offence.
Subsection 3 National defence Article L218-58
Article L218-58 (Order no. 2005-805 of 18 July 2005 Article 15 Official Journal of 19 July 2005)
The dumping of munitions which may not be disposed of on land without presenting serious risks to human beings or their environment may be authorised by the State representative at sea. The dumping is carried out in such a way as to reconcile human safety imperatives and the requirements of protecting the marine fauna and flora.
Verification of the application of the provisions of the present section to ships and French military aircraft is carried out by agents working under the authority of the Ministry of defence.
The penalties provided for by the present section are applicable to persons subject to military jurisdiction of the armed forces in accordance with the Code de justice militaire and in particular with Articles 165 and 171.
SECTION IV Pollution by incineration Articles L218-59 to
L218-71
Article L218-59 Incineration at sea is forbidden.
Article L218-60 For the purposes of the application of the present section, the following are taken to mean: 1° Incineration at sea: any deliberate combustion of waste, substances, products or materials loaded with a view to
their destruction at sea using a ship or a fixed artificial structure. 2° Ship: any sea vessel of any type, including hydrofoils and hovercraft as well as floating platforms or any floating
machinery, self-propelled or otherwise; 3° Fixed artificial structure: any non-floating machinery, installation, platform or fixed facility of any kind.
Article L218-61
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ENVIRONMENTAL CODE (Act no. 2003-346 of 15 April 2003 Article 6 Official Journal of 16 April 2003)
I. - The provisions of the present section apply to foreign ships: 1° In the event of incineration in waters under French sovereignty or jurisdiction; Even in the event of incineration outside waters under French sovereignty or jurisdiction, where loading took place
on French territory. II. - However, only the fines provided for in Articles L. 218-67 and L. 218-65 may be pronounced when the offence
has taken place in the economic zone or in the ecological protection zone.
Article L218-62 Even in the event of criminal proceedings, the administration retains the ability to instigate proceedings, in
accordance with the procedure for contravention de grande voirie, for compensation for damage caused to the public domain.
Article L218-63 In all cases, the rights of third parties with regard to polluters are and remain reserved.
Article L218-64 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
For any captain of a French ship, or in the absence of a captain, any person responsible for conducting incineration operations carried out on a French ship or fixed artificial structure, carrying out an incineration at sea is punishable by two years imprisonment and a fine of 75 000 Euros.
The penalties provided for in the previous paragraph are applicable to any captain of a ship which loads, in French territory, waste, substances, products or materials intended for incineration at sea.
Individuals guilty of offences provided for by the present section also incur, as an additional penalty, the penalty of public notification or publication of the ruling pronounced under the conditions set out in Article 131-35 of the Code pénal.
Article L218-65 Without prejudice to the penalties provided for in Article L. 218-64, if one of the offences is committed by order of
the owner or operator of a ship or fixed artificial structure as defined in 2° and in 3° of Article L. 218-60, this owner or operator is punished by double the penalties provided for in Articles L. 218-64.
Article L218-66 I. - Independently of officers and agents of the Judicial Police Department, the following are authorised to identify
and report infringements of the provisions of the present section: 1° Administrators of Maritime Affairs 2° Inspectors of Maritime Affairs 3° Officers from the technical and administrative corps of Maritime Affairs; 4° Technical experts from the maritime navigation safety service; 5° Transport department engineers and public works engineers assigned to the maritime service as well as agents
of the aforementioned services commissioned for this purpose; 6° Transport department engineers and public works engineers assigned to the transport departments of the
mineralogical department concerned; 7° Port officers and deputy port officers; 8° Officers of the police de la navigation et de la surveillance des pêches maritimes 9° Commanders, First officers or second officers of French navy vessels; 10° Defence Corps Engineers 11° Sworn researchers, engineers and technicians from the Institut français de recherche pour l'exploitation de la
mer; 12° Customs officers 13° Abroad, French consuls, excluding consular employees. II. - The following are responsible for identifying infringements of the present section, for collecting for this purpose
any information with a view to identifying the offenders and reporting them to either an administrator of Maritime Affairs, an officer of the technical and administrative corps of Maritime Affairs or an inspector of Maritime Affairs, or to an officer of the Judicial Police Department.
1° Commanders of State oceanographic ships; 2° Commanders of military aircraft, civil defence aircraft and State aircraft assigned to monitoring maritime waters. 3° Agents of the Institut français de recherche pour l'exploitation de la mer
Article L218-67 Official reports made by the agents mentioned in Article L. 218-66 have probative force unless proven otherwise.
They are immediately transmitted to the Procureur de le République by the agent who has made the report, who also simultaneously sends a copy to the departments concerned.
Article L218-68 Where the needs of the investigation or the seriousness of the offence require it, the ship used to commit one of the
offences referred to in Articles L. 218-64 and L. 218-65 may be immobilised by decision of the Procureur de le
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ENVIRONMENTAL CODE République or the examining magistrate dealing with the offence.
At any time, the authority having jurisdiction may order that the immobilisation order be lifted if a guarantee is paid, the amount, terms and conditions of which are set by the same authority.
The conditions for the allocation, use and restitution of the guarantee are regulated in accordance with the provisions of Articles 142, 142-2 and 142-3 of the Code de procédure pénale.
Article L218-69 I. - Infringements of the provisions of the present section are judged either by the court having jurisdiction over the
place where the offence took place, or by the court having jurisdiction over the place of residence of the offender. II. - The following also have jurisdiction: 1° The court having jurisdiction over the place of registration of the ship if it is French; The court having jurisdiction over the place where the ship is located if it is foreign, or if it is an unregistered platform
or machinery. III. In the absence of another court, the Ordinary Court of First Instance of Paris has jurisdiction.
Article L218-70 I. - Legal entities may be declared criminally liable for infringements of the present section, under the conditions set
out in Article 121-2 of the Code pénal . II. - The penalties incurred by legal entities are: 1° A fine, in accordance with the terms and conditions set out in Article 131-38 of the Code pénal; 2° The penalties mentioned in 2°, 3°, 4°, 5°, 6°, 8° and 9° of Article 131-39 of the same Code. III. - The prohibition mentioned in 2° of Article 131-39 of the Code pénal concerns the activity carried out during or at
the time of the offence.
Article L218-71 Verification of the application of the provisions of the present section to French navy vessels, to ships and French
military fixed artificial structures is carried out by agents of the Ministry of Defence. The penalties provided for by the present section are applicable to persons subject to military jurisdiction of the
armed forces in accordance with the Code de justice militaire, and in particular to Articles 165 and 171 thereof.
SECTION V Marine police emergency measures Article L218-72
Article L218-72 (Act no. 2003-591 of 2 July 2003 Article 31 III 5° Official Journal of 3 July 2003)
In the event of any ship, aircraft, machinery or platform transporting or having on board noxious or hazardous substances or hydrocarbons suffering damage at sea and potentially creating a serious risk of damage to the shore or related interests as defined in Article II-4 of the Brussels Convention of 29 November 1969 on interventions at sea in the event of accidents causing or potentially causing hydrocarbon pollution, the owner of the ship, or the owner or operator of the aircraft, machinery or platform may be formally instructed to take all necessary measures to halt the aforementioned hazard.
If this formal notification remains without effect or has not produced the expected effects within the time period allotted, the State may, either ex officio or as an emergency measure, have the measures implemented at the expense and risk of the ship-owner, owner or operator, or recover the amount equivalent to the cost of doing so from them.
The provisions provided for in the first and second paragraphs of the present Article also apply to ships, aircraft, machinery or platforms in damaged condition or having suffered an accident in the public maritime domain, in maritime ports and their approaches.
The provision of goods and services required to carry out the measures taken in application of the present Article or of the Brussels Convention of 29 November 1969 on interventions at sea in the event of accidents causing or potentially causing hydrocarbon pollution may be obtained by agreement or by requisition.
The amount of compensation due by the State is fixed under the conditions set out in titles II, IV and V of Order no. 59-63 of 6 January 1959 relating to the requisitioning of goods and services.
The conditions of application of the present Article are set by a Conseil d'Etat decree.
SECTION VI Other provisions applicable to harmful discharge at sea or in salt water Articles L218-73 to
L218-80
Article L218-73 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal 22 September 2000 in force on 1st January 2002)
The direct or indirect discharge or disposal of substances or organisms harmful to the conservation or reproduction of marine mammals, fish, crustaceans, shellfish, molluscs or vegetation, or of such a nature as to make them unfit for consumption, into the sea or salt-water sections of waterways canals or lakes is punishable by a fine of 22 500 Euros.
Article L218-74 Managers of fishing boats, whether they are their owners or not, as a result of acts committed by the skippers or
crew of the aforementioned boats, and those who operate marine culture establishments and shellfish depots, as a result of acts committed by their agents or employees, may be declared criminally liable for fines pronounced with
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ENVIRONMENTAL CODE regard to offences provided for in Article l. 218-73
In all cases they are liable for civil judgements.
Article L218-75 When an infringement of Article L. 218-73 has been reported under the conditions set out in Article L. 218-77, the
representative of the State in the region may suspend, for a maximum period of three months, the rights and prerogatives relating to qualifications, diplomas or certificates of captains, skippers or those who perform those functions, as well as fishing permits, special fishing permits, and generally, any fishing authorisation granted in application of national or European regulations.
The sanction is pronounced by reasoned decision after having consulted a disciplinary board, under the conditions set by a Conseil d'Etat decree.
The parties concerned are informed of the acts for which the proceedings are being instigated. They are invited, in writing, to take cognisance of their file and are informed that they have a two-month period in
which to present their case for defence. The representative of the State in the region may not suspend the rights or authorisations in question for acts
committed more than one year previously. The decision, which may be accompanied by a suspended execution, is open to appeal before the administrative
tribunal.
Article L218-76 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Act no. 2004-204 of 9 March 2004 Article 198 Official Journal of 10 March 2004, in force on 1st January 2005)
In the event of a conviction for offences provided for by Article L. 218-73, the court determines, where appropriate, the measures to be taken to stop the offence or to avoid the repetition thereof and the period if time within which these measures must be carried out as well as a periodic penalty payment of a maximum of 300 euros per day of delay in carrying out the measures or obligations imposed.
The periodic penalty payment ceases on the day the obligations are fulfilled. It is then liquidated by the court on request of the interested party and recovered by the Chief Accountant of the Treasury as a criminal fine. It does not give rise to legal restraint. The present Article applies only to discharges or disposal originating from fixed facilities.
Article L218-77 The following are authorised to identify and investigate offences provided for by Article L. 218-73: 1° Agents mentioned in Article 16 of the decree of 9 January 1852 on maritime fishing: 2° Agents of National Parks under the conditions set out in Chapter I of Title III of Book III of the present Code; 3° The agents of nature reserves under the conditions set out in Chapter II of Title III of Book III of the present
Code;
Article L218-78 The provisions of Articles 17 to 21, part 2, of the decree of 9 January 1852 on maritime fishing are applicable to the
offences provided for by Article L. 218-73
Article L218-79 Individuals guilty of offences provided for by Article L. 218-73 also incur as an additional penalty, public posting or
publication of the decision pronounced under the conditions provided for by Article 131-35 of the Code pénal.
Article L218-80 I. - Legal entities may be declared criminally liable for infringements of Article L. 218-73 under the conditions set out
by Article 121-2 of the Code pénal II. - The penalties incurred by legal entities are: 1° A fine, in accordance with the terms and conditions set out in Article 131-38 of the Code pénal; 2° The penalties mentioned in 2°, 3°, 4°, 5°, 6°, 8° and 9° of Article 131-39 of the same Code. III. - The prohibition mentioned in 2° of Article 131-39 of the Code pénal is applicable to the activity during which, or
at the time of which the offence was committed.
SECTION VII Ecological protection zone Article L218-81
Article L218-81 (Inserted by Act no. 2003-346 of 15 April Article 7 Official Journal of 16 April 2003)
As specified in Article 4 of Act no. 76-655 of 16 July 1976 relating to the economic zone and the ecological protection zone off the coasts of the territory of the Republic, reproduced hereafter:
Article 4 - In the economic zone defined in Article 1, the French authorities also have jurisdiction recognised by international law relating to the protection and conservation of the marine environment, to marine scientific research, the implementation and use of artificial islands, installations and structures.
When, in a zone designated as specified in Article 1, the French authorities intend, for reasons relating to international relations, to exercise jurisdiction only as mentioned in the first paragraph, this zone is named an ecological protection zone. In this zone, the provisions of Article 3 do not apply to ships flying the flag of a foreign State.
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ENVIRONMENTAL CODE TITLE II Air and the atmosphere Articles L221-1 to
L220-2
Article L220-1 The State and its public institutions, local authorities and their public institutions as well as private individuals, all
contribute, each within its field of competence and within the limits of its responsibility, to a policy the objective of which is the implementation of the recognised right of all to breathe air which is not harmful to the health.
This action of general public interest consists in preventing, monitoring, reducing or removing atmospheric pollution, preserving air quality and, to these ends, saving and using energy in a rational manner.
Article L220-2 Atmospheric pollution is defined, for the purposes of the present Title, as being the introduction by man, directly or
indirectly, into the atmosphere and closed spaces, of substances having detrimental consequences likely to put human health in danger, to damage biological resources and ecosystems, to influence climate change, to damage material goods, or to result in odour nuisance.
CHAPTER I Monitoring of air quality and public information Articles L221-1 to
L221-6
SECTION I Monitoring of air quality Articles L221-1 to
L221-5
Article L221-1 (Act no. 2001-398 of 9 May 2001 Article 6 Official Journal of 10 May 2001) (Order no. 2005-1087 of 1 September 2005 Article 3 Official Journal of 2 September 2005)
I. - The State ensures, with the help of local authorities, while respecting free administration and the principles of decentralisation, the monitoring of air quality and its effects on health and the environment. It entrusts the Environment and Energy Management Agency with the technical coordination of the monitoring of air quality. Air quality objectives, alert thresholds and limit values are determined, further to an opinion expressed by the French Agency for Safety in the Environment and the Workplace, in accordance with those defined by the European Union, or in their absence, by the World Health Organisation. These objectives, threshold alerts and limit values are regularly re-assessed to take account of the results of medical and epidemiological studies.
II. - For the purposes of the present Title, the following terms are defined thus: 1° Quality objective: a concentration level of pollutant substances in the atmosphere, determined on the basis of
scientific knowledge, with a view to avoiding, preventing or reducing the harmful effects of these substances on human health or the environment, to be reached within a given period of time:
2° Threshold alert: a concentration level of pollutant substances in the atmosphere above which short-term exposure represents a risk to human health or of damage to the environment and above which emergency measures must be taken;
3° Limit value: a maximum concentration level for pollutant substances in the atmosphere, determined on the basis of scientific knowledge, with a view to avoiding, preventing or reducing the harmful effects of these substances on human health or the environment.
III. - Substances the release of which into the atmosphere may contribute to a deterioration of air quality with regard to the objectives mentioned in the first paragraph are monitored, in particular by observation of the evolution of parameters revealing the existence of such a deterioration. Public health parameters likely to be affected by an evolution in air quality are also monitored.
Article L221-2 A facility for monitoring air quality and its effects on health and the environment must have been implemented at the
latest: by 1st January 1997 in conurbations of more than 250 000 inhabitants, by 1st January 1998 for conurbations of more than 100 000 inhabitants, and by 1st January 2000 for the whole national territory. The terms and conditions of monitoring are adapted to the needs of each zone concerned.
Quality objectives, alert thresholds and limit values as well as the list of substances mentioned in III of Article L. 221-1 are set by decree. The list and the map of communes included in conurbations of more than 250 000 inhabitants as well as those of between 100 000 and 250 000 inhabitants are provided in an annexe to the decree.
Article L221-3 In each region, and in Corsica, the State entrusts the implementation of the monitoring provided for in Article L.
221-2 to one or more approved organisations. These associate, in a balanced manner, the representatives of the State and of the Environment and Energy Management Agency, the local authorities, representatives of the various activities contributing to the emission of monitored substances, environmental protection associations approved under Article L. 141-1, approved consumers associations and, where appropriate, qualified persons in the same category as the associations. The terms and conditions of application of the present Article are set by a Conseil d'Etat decree.
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ENVIRONMENTAL CODE Article L221-4
Equipment for measuring air quality and the release of substances into the atmosphere, as well as the laboratories which carry out analyses and checks of pollutant emissions, are subject to approval by the administrative authorities. These authorities determine the methods used for measurement and the criteria for the location of the equipment used.
Article L221-5 Approval granted in application of the present section may be withdrawn when organisations or laboratories as well
as measuring equipment no longer satisfy the conditions which allowed approval to be granted.
SECTION II Public information Article L221-6
Article L221-6 (Act no. 2001-398 of 9 May 2001 Article 6 Official Journal of 10 May 2001)
Without prejudice to the provisions of Act no. 78-753 of 17 July 1978 covering various measures for the improvement of relations between the administration and the public and various provisions of an administrative, social and fiscal nature, the results of epidemiological studies on atmospheric pollution, the results of studies on the environment linked to atmospheric pollution, as well as information and forecasts relating to the monitoring of air quality, to emissions into the atmosphere and to energy consumption are the object of a periodic publication which may be entrusted to the approved organisations mentioned in Article L. 221-3, chosen according to their field of competence.
Each year the State publishes an inventory of the emissions of pollutant substances and an inventory of energy consumption. It also publishes a report on air quality, its possible evolution and its effects on health and the environment. The inventory of emissions of pollutant substances and the report on air quality, its possible evolution and its effects on health and the environment are subject to an opinion expressed by the French Agency for Environmental Safety.
When air quality objectives are not reached or when the alert thresholds and limit values mentioned in Article L. 221-1 are exceeded or are likely to be exceeded, the public is immediately informed of this by the competent administrative authority. This information also concerns the values measured, advice to the populations concerned and the regulatory provisions decided upon. The competent administrative authority may delegate the implementation of this information to the organisations specified in Article l. 221-3
CHAPTER II Planning Articles L222-1 to
L222-8
SECTION I Regional air quality plans Articles L222-1 to
L222-3
Article L222-1 (Act no. 2002-92 of 22 January Article 24 I Official Journal of 23 January 2002) (Act no. 2002-276 of 27 February 2002 Article 109 I a Official Journal 28 February 2002)
The president of the Conseil Régional prepares a regional air quality plan which sets the guidelines allowing the air quality objectives mentioned in Article L. 221-1 to be met and atmospheric pollution to be prevented or reduced or its effects to be attenuated.
The State departments are associated with the preparation of the plan. The Conseil Régional obtains the opinion of the comité de massif for zones where the Alpine Convention is applied. This plan also determines air quality objectives specific to certain zones where this is justified for the purpose of their protection.
To these ends, the regional air quality plan is based on an inventory of emissions and an evaluation of air quality and its effects on public health and on the environment.
In Corsica, the regional air quality plan is prepared by the President of the executive council. The State departments are associated with its preparation.
Article L222-2 (Act no. 2002-92 of 22 January 2002 Article 24 II Official Journal of 23 January 2002) (Act no. 2002-276 of 27 February 2002 Article 109 I b, c Official Journal of 28 February 2002) (Order no. 2004-637 of 1 July 2004 Article 23 V, Article 27 II Official Journal of 2 July 2004)
The département commissions competent in matters of the environment and health and technological risks and the representatives of the approved organisations specified in Article L. 221-3 are involved in the preparation of the regional air quality plan.
The draft of the plan is made available to the public for consultation. It is transmitted for their opinion to the communes, to the public institutions for inter-commune cooperation and to the mixed syndicates competent for the preparation of a territorial consistency scheme, to communes where there is an urban traffic plan or a plan for the protection of the atmosphere, as well as to the authorities competent for the organisation of urban transport and to the Conseils Généraux.
After possible modification in order to take account of the observations of the public and the opinions of the authorities consulted, it is finalised by decision of the Conseil Régional or, in Corsica, by decision of the Corsican
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ENVIRONMENTAL CODE Assembly further to a proposal by the president of the executive council and after obtaining the opinion of the representative of the State.
After a period of five years, the plan is assessed and revised, if necessary, if the air quality objectives have not been reached.
The plan is then modified with regard to the objective elements of the five-year report and the updated scientific and sanitary data.
In the Ile-de-France region, the Mayor of Paris is involved in the preparation and revision of the plan. NB: Order 2004-637 2004-07-01 Article 41: the modifications brought about by article 23 V come into force on 1st
July 2005 at the latest.
Article L222-3 (Act no. 2002-276 of 27 February 2002 Article 109 I d Official Journal of 28 February 2002)
A Conseil d'Etat decree sets the terms and conditions of application of the present section, in particular the conditions under which the representative of the State in the region prepares or revises the regional air quality plan, when having been invited to do so, the Conseil Régional or, in Corsica, the Assemblée Corse, has not adopted it within a period of eighteen months.
SECTION II Atmosphere protection plans Articles L222-4 to
L222-7
Article L222-4 (Order no. 2004-637 of 1 July 2004 Article 23 V, Article 27 III Official Journal of 2 July 2004)
I. - In all conurbations of more than 250 000 inhabitants, as well as in zones where, under the conditions set by a Conseil d'Etat decree, the limit values mentioned in Article L. 221-1 are exceeded or are likely to be exceeded, the Préfet prepares an atmosphere protection plan, compatible with the guidelines of the regional air quality plan if it exists.
II. - When the département commissions competent in matters of the environment and health and technological risks concerned have given an opinion, the draft of the plan is submitted, for their opinion, to the municipal councils, and where they exist, to the decision-making bodies of the competent public institutions of inter-commune cooperation. If an opinion is not expressed within six months after the submission of the draft of the plan, this opinion is deemed to be favourable. It is then submitted for public enquiry under the conditions set out in Chapter III of Title III of Book I.
III. - Potentially modified in order to take account of the results of the enquiry, the plan is officially approved by the Préfet.
IV. - For conurbations of more than 250 000 inhabitants, the atmosphere protection plans provided for by the present section are officially approved within eighteen months from 1st January 1997. For zones in which the limit values have been exceeded, they are officially approved within a period of eighteen months from the date on which the overshoot was reported.
V. - The plans are the object of an assessment at the end of a period of five years and, where appropriate, are revised.
NB: Order 2004-637 2004-07-01 Article 41: the modifications brought about by article 23 V come into force on 1st July 2005 at the latest.
Article L222-5 The purpose of the atmosphere protection plan is, within the period of time specified, to reduce the concentration of
pollutants in the atmosphere within the zone to the limit values referred to in Article L. 221-1, and to define the terms and conditions of the alert procedure defined in Article L. 223-1.
Where justified by particular local circumstances linked to the protection of the interests defined in Articles L. 220-1 and L. 220-2, the atmosphere protection plan may reinforce the air quality objectives mentioned in Article L. 221-1 and specify guidelines in order to reach them. It may also reinforce the technical measures mentioned in Articles L. 224-1, L. 224-2 and L. 224-4.
The decree mentioned in Article L. 222-7 specifies the measures which may be implemented in order to reach the objectives set by the atmosphere protection plan, in particular those concerning the rules for the operation of certain categories of installations, the use of fuels, the conditions of use of vehicles or other movable objects and the widening of the range of controlled substances.
Article L222-6 In order to reach the objectives defined by the atmosphere protection plan, the appropriate supervisory authorities
decide upon the preventive measures to be applied temporarily or permanently, intended to reduce the emissions of sources of atmospheric pollution.
They are based on the provisions of Title I of Book V where the establishment from which the pollution originates is the subject of these provisions. In other cases, the authorities mentioned in the previous paragraph may pronounce the restriction or suspension of the pollutant activities and stipulate limits on the use of vehicles.
Article L222-7 (Act no. 2001-398 of 9 May 2001 Article 6 Official Journal of 10 May 2001) (Order no. 2005-1087 of 1 September 2005 Article 3 Official Journal of 2 September 2005 rectification JORF 10 September 2005)
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ENVIRONMENTAL CODE The terms and conditions of application of the present section are set by a Conseil d'Etat decree after having
obtained the opinion of the Higher Council for classified facilities and of the French Agency for Safety in the Environment and the Workplace.
SECTION III Urban traffic plans Article L222-8
Article L222-8 (Act no. 2003-591 of 2 July 2003 Article 31 III 6° Official Journal of 3 July 2003)
The prescriptions relating to urban traffic plans are set out in Chapter II of Title II of Act no. 82-1153 of 30 December 1982 on domestic transport.
CHAPTER III Emergency measures Articles L223-1 to
L223-2
Article L223-1 When the alert thresholds are reached or are likely to be reached, the Préfét immediately informs the public in
accordance with the terms and conditions set out in Section 2 of Chapter 1 of the present Title and takes measures to limit the scale and the effects of peak pollution levels on the population. These measures for the application of the atmosphere protection plan where it exists and after having informed the mayors concerned, include a facility for the restriction or suspension of activities contributing to peak pollution levels including, where appropriate, the use of vehicles, and for the reduction of emissions from fixed and mobile sources.
Article L223-2 In the event of restrictive or suspensive measures on the use of vehicles decided by the Préfet within the framework
of an alert procedure, access to public passenger transport networks is provided free of charge.
CHAPTER IV National technical measures for the prevention of atmospheric pollution and the
rational use of energy Articles L224-1 to L224-5
SECTION I General provisions Articles L224-1 to
L224-2
Article L224-1 (Act no. 2005-781 of 13 July 2005 Article 27 IV, V Official Journal of 14 July 2005)
I. - With a view to reducing the consumption of energy and to limiting the sources of pollutant substances which are harmful to human health and the environment, the following are set by a Conseil d'Etat decree:
1° Technical specifications and performance standards applicable to the manufacture, sale, storage, use, maintenance and destruction of movable goods other than the vehicles referred to in Articles L. 331-1, L. 318-1 to 318-4 of the Highway Code reproduced in Article L. 224-5 of the present Code;
2° Technical specifications applicable to the construction, use, maintenance and demolition of real-estate; 3° The conditions of verification of the operations mentioned in the two previous paragraphs. II. - The decrees mentioned in I may also: 1° Oblige the manufacturers and users to verify the energy consumption levels and emissions of pollutant
substances of their goods, under their own diligence and at their own expense; 2° Stipulate that boilers and air-conditioning systems with a power greater than a threshold set by decree are
regularly inspected under conditions that they set. In the framework of these inspections, advice regarding optimisation and installation is dispensed, where applicable, to the owners or managers;
3 Stipulate to companies that sell energy or energy services that they are obliged to promote a rational use of energy and to encourage energy savings in their advertising messages.
III. - A Conseil d'Etat decree sets the conditions under which heating fuel, diesel, petrol and premium-grade petrol must contain a minimum amount of oxygen.
IV. - The conditions under which the specifications of the fuels mentioned in III must be redefined from 1st January 2000 are set by decree
V. - In order to meet the objectives of the present Title, a Conseil d'Etat decree sets the conditions under which certain new constructions must contain a minimum quantity of wood.
Article L224-2 (Act no. 2004-1343 of 9 December 2004 Article 41 III Official Journal of 10 December 2004) (Act no. 2005-781 of 13 July 2005 Article 27 IV, V Official Journal of 14 July 2005)
The decrees provided for in Article L. 224-1 set the conditions under which the competent administrative authorities are authorised to:
1° Grant or withdraw the official approval of assessors or organisations responsible for the checks provided for in 1° of II of Article L. 224-1;
2° Stipulate the obligation to display the energy consumption of certain goods at their point of sale or rental, and to
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ENVIRONMENTAL CODE specify the methods of measurement used for the goods on sale and, where applicable, stipulate the obligation to display the evaluation of the full cost, bearing in mind their energy consumption and their purchase price, and specify the methods by which they are set;
3° Repealed; 4° Stipulate the obligation to equip dwellings or buildings used for tertiary purposes the building permit of which was
registered after 1st July 1997 with devices allowing the choice and replacement, at any time in the life of the building, of any type of energy.
SECTION II Automotive vehicles Articles L224-3 to
L224-5
Article L224-3 The inclusion of oxygenated compounds, particularly of agricultural origin, in petroleum-based fuels is encouraged
in the framework of the control of air pollution. This inclusion is the object, within the framework defined at European level, and on proposal by the minister for
energy and the minister for the environment, of pilot operations in sensitive urban areas, where the pollution is characterised by high levels of carbon monoxide, unburnt residues and atmospheric ozone.
The general conditions of implementation of these pilot operations are defined by a Conseil d'Etat decree.
Article L224-4 The decrees provided for in Article L. 224-1 set the conditions under which the competent administrative authorities
are authorised to stipulate the conditions to limit the emissions of volatile organic compounds linked with the refuelling of vehicles in services stations with an output higher than 3000 cubic metres per year.
Article L224-5 The regulations relating to the energy consumption and pollutant emissions of automotive vehicles are set by
Articles L. 311-1 and L. 318-1 to L. 318-3 of the Highway Code reproduced hereafter: "Article L. 311-1 Vehicles must be built, sold, operated, used, maintained and, where appropriate, repaired in such a
way as to ensure the safety of all road users. Decrees approved by the Conseil d'Etat set the conditions of application of the present Article. "Article L. 318-1 Vehicles must be built, sold, operated, used, maintained and, where appropriate, repaired in such a
way as to minimise the consumption of energy, the creation of non-recyclable waste, emissions of pollutant substances, in particular of carbon monoxide, referred to in Article L. 220-2 of the Code de l'environnement on air and the rational use of energy as well as other nuisances likely to compromise public health.
The energy consumption of vehicles and the methods used to measure it must be displayed at the point of sale or rental of these vehicles.
Motor vehicles are the object of an identification based on their contribution to the limitation of atmospheric pollution. Vehicles thus identified may, in particular, benefit from particular advantages and conditions concerning road use and parking.
A Conseil d'Etat decree sets the terms and conditions of application of the present Article. "Article L. 318-2 Subject to the constraints relating to public service requirements, the State, public institutions,
nationalised firms, for those activities not belonging to the competitive sector, as well as local authorities and their groups, when they manage directly or indirectly a fleet of more than twenty vehicles, acquire or use when renewing the vehicles in the fleet, with a minimum proportion of 20%, vehicles using electrical energy, or liquefied petroleum gas or natural gas. This measure applies to all the vehicles in the aforementioned fleet, with the exception of those whose gross vehicle weight exceeds 3.5 tonnes.
A Conseil d'Etat decree sets the terms and conditions of application of the present Article. "Article L. 318-3 Subject to the constraints linked to public service requirements, the State, public institutions,
nationalised firms, for those activities not belonging to the competitive sector, as well as local authorities and their groups, when they manage directly or indirectly a fleet of more than twenty vehicles for the purposes of public passenger transport, use vehicles which use fuels whose minimum oxygen rate has been raised. This measure applies within the perimeters of urban transport in conurbations of more than 100 000 inhabitants defined in the second paragraph of Article L. 221-2 of the Code de l'environnement on air and the rational use of energy.
A Conseil d'Etat decree sets the terms and conditions of application of the present Article.
CHAPTER V Financial and tax provisions Articles L225-1 to
L225-2
Article L225-1 The prescriptions relating to the taxation of fossil fuels and to that of renewable energies are set out in Article 25,
paragraphs 1 and 3, of Act no. 96-1236 of 30 December 1996 on air and the rational use of energy. The funding of the monitoring of air quality which takes account of the product of taxation on fossil fuels, is ensured
under the conditions provided for by finance laws.
Article L225-2
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ENVIRONMENTAL CODE (Order no. 2000-916 of 19 September 2000 annexe Official Journal of 22 September 2000 in force on 1st January 2002)
The operators of public passenger transport networks equipping their public transport vehicles, put into circulation between 1st January 1991 and 1st July 1996, with systems allowing pollutant emissions to be reduced benefit from a refund of the cost of this equipment up to an amount equivalent to half the cost of acquisition, with a limit of 1215 euros per public transport vehicle. Systems giving rise to a refund must be approved jointly by the Minister for the budget, the Minister for transport and the Minister for the environment.
CHAPTER VI Checks and sanctions Articles L226-2 to
L226-1
Article L226-1 Measures regarding checks and sanctions are taken on the basis of the provisions of Chapter I of Title I of Book V
where the installation at the origin of the pollution falls under these provisions.
SECTION I Identification and investigation of offences Articles L226-2 to
L226-5
Article L226-2 In addition to the officers and agents of the Judicial Police Department acting within the framework of the Code de
procedure pénale, the following are authorised to carry out the checks provided for in the present Chapter and to identify and investigate infringements of the present Title and those for its application.
1° The agents mentioned in Article L. 514-5; 2° The civil servants and agents, commissioned for this purpose and sworn under the conditions set by a Conseil
d'Etat decree, belonging to the State departments responsible for the environment, industry, town and country planning, transport, the sea, agriculture, competition, consumption and the repression of fraud, and health;
3° Customs officers 4° Engineers and technicians of the Laboratoire Central and health inspectors of the Préfecture de police.
Article L226-3 The civil servants and agents described in Article L. 226-2 have access to premises, installations and closed spaces
adjoining them, excluding dwellings and sections of premises being used as dwellings. These agents may only have access to these premises between 8 am and 8 pm or at any time when they are open to the public or when an activity or operation which it is their role to check is in progress.
These agents may request any useful element or document, and make a copy thereof, and collect by summons, or on site, the information and justifications necessary in order to accomplish their mission.
The Procureur de la République is informed in advance of the operations envisaged with a view to the identification of offences. He or she may oppose these operations.
Article L226-4 I. - In the framework of operations provided for by Article L. 226-3, the agents described in Article L. 226-2 may: 1° Take samples or carry out measurements for the purpose of analyses or trials; 2° Impound property likely to be non-compliant with the provisions of the present Title or with those for its
application for the time required to carry out the checks. II. - This immobilisation may only be carried out by authorisation of the president of the Ordinary Court of First
Instance with jurisdiction over the place where the contentious property is impounded, or by the magistrate appointed to do so.
III. This magistrate is referred to by request of the agents mentioned in Article L. 226-2. He or she decides within a period of twenty-four hours.
IV. - The president of the Ordinary Court of First Instance verifies that the application for immobilisation which is submitted to him is justified: this application includes all the necessary elements of information in order to justify the measure.
V. - The immobilisation may not exceed fifteen days. In the event of particular difficulties linked to the examination of the property in question, the president of the Ordinary Court of First Instance may renew the measure for the same period by a justified order.
VI. - Impounded property remains the responsibility of the holder. VII. - The President of the Ordinary Court of First Instance may order the lifting of the immobilisation at any time.
This lifting is automatic in all cases where the authorised agents have reported that the impounded property is in compliance or has been brought into compliance.
Article L226-5 Infringements of the provisions of the present Title and of the enactments for its application are reported by official
reports which have probative force unless proven otherwise. Official reports are sent, on pain of being declared null and void, within five days following their closure, to the Procureur de la République. A copy is sent within the same period of time to the interested party.
SECTION II
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ENVIRONMENTAL CODE Sanctions Articles L226-6 to
L226-11
Article L226-6 The procedure consisting of a standard fine is applicable to infringements of provisions for the application of the
present Title.
Article L226-7 (Order no. 2000-930 of 22 September 2000 Article 2 Official Journal of 24 September 2000 in force on 1st June 2001)
The measures provided for in Articles L. 121-4, L. 234-1, L. 325-1 to L. 325-3, L. 325-6 to L. 325-11 and L. 417-1 of the Highway Code are applicable to vehicles in contravention of the provisions of the present Title or to the enactments for their application.
Article L226-8 I. When one of the civil servants or agents described in Article L. 226-2 reports a failure to observe the provisions
set out in the present Title or enactments and decisions for their application, the Préfet officially instructs the interested party to meet these obligations within a fixed period of time, and invites the party to present any observations within the same period of time.
II. - If, at the expiry of this period of time, the party has not complied with this injunction, the Préfet may: 1° Stipulate that a sum corresponding to the cost of the works or operations required in order to bring the property
into compliance be deposited with a State Accountant; this sum is returned progressively as the work is carried out. In order to recover this sum, the State benefits from a privilege of the same rank as that provided for by Article 1920 of the Code général des impôts;
2° Have the works or operations required to bring the property into compliance carried out ex officio and at the expense of the concerned party;
3° Order the suspension of the activity, the immobilisation or the interruption of the use of the equipment or machinery pending the execution of the works or operations necessary to bring them into compliance.
III The sums deposited in application of the provisions of 1° of II may be used to settle expenses resulting from the official execution of the measures provided for in 2° and 3° of II.
IV. - The decisions in application of the previous paragraphs are subject to full jurisdiction proceedings. V. - When the enforceable status used in application of a measure of immobilisation ordered by the Préfet is the
object of an opposition before the Administrative Judge, the President of the administrative court or the magistrate to whom the task has been delegated, acting in summary jurisdiction, may, notwithstanding this opposition, at the request of the Préfet or any person concerned, decide that the appeal shall not be suspensive, where none of the arguments put forward seem to him to be serious. The president of the court decides within fifteen days of referral.
VI. - During the period of suspension of activity, the operator of an industrial, commercial, agricultural or services firm must maintain the payment of salaries, compensation and remuneration of any kind to its personnel to which they were entitled beforehand.
Article L226-9 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
The act of obstructing the course of duties entrusted by the present Title to the agents mentioned in Article L. 226-2 is punishable by six months of imprisonment and a fine of 7500 euros.
When an industrial, commercial, agricultural or services firm emits pollutant substances constituting atmospheric pollution, as defined in Article L. 220-2, in violation of an official notification pronounced in application of Article L. 226-8, the operator is punished by six months' imprisonment and a fine of 7500 euros.
The operator also incurs the additional penalties mentioned in 10° and 11° of Article 131-6 of the Code pénal as well as the penalty of public posting or publication of the decision pronounced either by written press, or by any means of audiovisual communication in accordance with Article 131-35 of the same Code.
Article L226-10 I. - Legal entities may be declared criminally liable under the conditions set out in Article 121-2 of the Code pénal for
infringements of the provisions of the present Title and of those for their application. II. - The penalties incurred by legal entities are: 1° A fine, in accordance with the terms and conditions set out in Article 131-38 of the Code pénal; 2° The penalties mentioned in 2°, 3°, 4°, 5°, 6°, 8° and 9° of Article 131-39 of the same Code. III. - The prohibition mentioned in 2° of Article 131-39 of the Code pénal is applicable to the activity during which, or
at the time of which the offence was committed.
Article L226-11 When an individual or a legal entity is declared guilty of the offence set out in the second paragraph of Article L.
226-9, the court may, in application of Articles 132-66 to 132-70 of the Code pénal, enjoin this person or legal entity to carry out the works or operations necessary to bring the property into compliance and prescribed by the Préfet in application of Article L. 226-8.
CHAPTER VII Particular provisions for pollution caused by radioactive substances Article L227-1
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ENVIRONMENTAL CODE Article L227-1
Pollution of any kind caused by radioactive substances as well as the conditions for the creation, operation and monitoring of basic nuclear installations is not subject to the provisions of the present Title. The prescriptions which are applicable to them are set out in Act no. 61-842 of 2 August 1961 relating to the control of atmospheric pollution and odours, as modified and completed by I and II of Article 44 of Act no. 96-1236 of 30 December 1996 on air and the rational use of energy.
CHAPTER VIII Miscellaneous provisions Articles L228-1 to
L228-2
SECTION I National defence Article L228-1
Article L228-1 The provisions of the present Title are applicable to vehicles and equipment of the army, the navy and military
aviation only where these provisions are not incompatible with the technical characteristics of their manufacture and use.
SECTION II Cycling routes Article L228-2
Article L228-2 When urban roadways are constructed or renovated, with the exception of motorways and expressways, cycling
routes must be created, equipped with paths, road markings or separate corridors, depending on the needs and constraints of traffic circulation.
The development of these cycling routes must take account of the guidelines of urban traffic plans when these exist
CHAPTER IX Greenhouse effect Articles L229-1 to
L229-24
SECTION I The National Observatory on the effects of global warming Articles L229-1 to
L229-4
Article L229-1 (Act no. 2003-591 of 2 July 2003 Article 31 III 7° Official Journal of 3 July 2003) (Order no. 2004-330 of 15 April 2004 Article 1 I Official Journal of 17 April 2004)
The fight against the intensification of the greenhouse effect and the prevention of risks linked to global warming are recognised as being national priorities.
Article L229-2 (Act no. 2003-591 of 2 July 2003 Article 31 III 7° Official Journal of 3 July 2003) (Order no. 2004-330 of 15 April 2004 Article 1 I Official Journal of 17 April 2004)
A National Observatory on the effects of global warming in mainland France and in the overseas départements and territories has been set up.
The National Observatory on the effects of global warming is responsible for collecting and distributing information, studies and research on the risks linked to global warming and extreme climatic phenomena in mainland France and in the overseas départements and territories, in liaison with the research establishments and institutes concerned and the intergovernmental group of experts on the evolution of the climate. It may carry out, in its area of competence, any action for the information of the public and of the local authorities.
Article L229-3 (Act no. 2003-591 of 2 July 2003 Article 31 III 7° Official Journal of 3 July 2003) (Order no. 2004-330 of 15 April 2004 Article 1 I Official Journal of 17 April 2004)
Every year the National Observatory on the effects of global warming prepares an informational report for the Prime Minister and Parliament. This report may contain recommendations on preventive and adaptive measures likely to limit the risks linked to global warming. The report is made available to the public.
Article L229-4 (Act no. 2003-591 of 2 July 2003 Article 31 III 7° Official Journal of 3 July 2003) (Order no. 2004-330 of 15 April 2004 Article 1 I Official Journal of 17 April 2004)
The headquarters, the composition, the methods of designation of members and the operational regulations of the Observatory are set by decree.
SECTION II Greenhouse gas emission quotas Articles L229-5 to
L229-19
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ENVIRONMENTAL CODE Article L229-5 (Inserted by Order no. 2004-330 of 15 April 2004 Article 1 II Official Journal of 17 April 2004)
The provisions of the present section apply to classified facilities which emit greenhouse gases into the atmosphere when they exercise one of the activities the list of which is set by a Conseil d'Etat decree. This same decree also takes account of the production or output capacity of the installation.
Article L229-6 (Order no. 2004-330 of 15 April 2004 Article 1 II Official Journal of 17 April 2004) (Act no. 2004-1343 of 9 December 2004 Article 80 XIV 1º Official Journal of 10 December 2004)
The facilities entering into the scope of the present section are subject to authorisation for the emission of greenhouse gases.
The authorisation provided for in article L. 512-1 takes the place of the authorisation provided for in the previous paragraph.
A ruling issued by the Minister for classified facilities sets the methods of implementation of the particular obligations regarding monitoring, declaration and inspection to which the facilities entering into the scope of the present section are subject. This ruling also specifies the methods for checking the emission declarations mentioned in III of article L. 229-14.
Article L229-7 (Order no. 2004-330 of 15 April 2004 Article 1 II Official Journal of 17 April 2004) (Act no. 2005-1319 of 26 October 2005 Article 6 Official Journal of 27 October 2005)
Within the meaning assigned by the present section, a greenhouse gas emission quota is an account unit representing the emission of the equivalent of one tonne of carbon dioxide.
For each facility benefiting from the authorisation to emit greenhouse gases, the State allocates emission quotas to the operator for a set period, and, each year within this period, issues the operator with a share of quotas that have been allocated to the operator in this way.
The quantity of greenhouse gases emitted by this facility in the course of a calendar year is calculated or measured and expressed in tonnes of carbon dioxide.
At the end of each of the calendar years in the period of allocation, the operator returns to the State, on penalty of the sanctions stipulated in article L. 229-18, a number of quotas equal to the total amount of greenhouse gas emissions of the operator's facilities, whether these quotas have been issued or whether they have been acquired by virtue of article L. 229-15.
However, when a facility uses, in a combustion process, gases supplied by a metallurgy facility, the corresponding quotas are allocated and issued to the operator of this latter facility. This operator is solely responsible for the obligations provided in the present section.
Within the limit of the percentage set by VI of article L. 229-8, the operator may fulfil the obligation provided for in the fourth paragraph of the present article by means of certain units described by article L. 229-22 listed on its account on the national register mentioned in article L. 229-16. A Conseil d'Etat decree specifies those of the units which may be used in this way.
Article L229-8 (Order no. 2004-330 of 15 April 2004 Article 1 II Official Journal of 17 April 2004) (Act no. 2004-1343 of 9 December 2004 Article 80 XIV 2º Official Journal of 10 December 2004) (Act no. 2005-1319 of 26 October 2005 Article 6 Official Journal of 27 October 2005)
I. - The greenhouse gas emission quotas are allocated by the State for a period of three years from 1st January 2005, then by periods of five years, in the framework of a national plan drawn up for each period.
II. - This plan sets the maximum quantity of emission quotas allocated by the State in the course of a period, except for those that it acquires in application of II of article L. 229-15, the criteria for distribution of these quotas, and the list of beneficiary facilities.
III. - The maximum quantity of emission quotas allocated in the course of a period is set according to: 1º The international undertakings of France with regard to greenhouse gas emissions; 2º The proportion of the emissions from the facilities subject to the provisions of the present section out of all the
estimated emissions in France; 3º The forecasts for the evolution in trends of emissions in all the sectors of activity and the production of activities
entering the categories described in article L. 229-5; 4º The technical and economic possibilities for reducing greenhouse gas emissions in all the sectors of activity; 5º The forecasts for the creation, extension, and closure of facilities entering into the scope of the present section. IV. - The plan distributes the emission quotas among the various facilities mentioned in article L. 229-5. This
distribution takes account of the technical and economic possibilities for reducing the emissions of the beneficiary activities, the forecasts for the evolution in production of these activities, the measures taken with a view to reducing greenhouse gas emissions before the system of exchange of quotas is established and, where applicable, the competition from activities located in countries outside the European Community.
V. - The plan puts into reserve emission quotas destined for the operators of facilities authorised in the course of the duration of the plan, and for those whose authorisation would be modified. The State may make a bid for quotas in application of II of article L. 229-15 to complete this reserve.
VI. - For each period of five years described in I, the plan sets, in the form of a percentage of the total amount of
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ENVIRONMENTAL CODE quotas allocated to each facility, the maximum quantity of those of the units described by article L. 229-22 that the operators may use in accordance with the last paragraph of article L. 229-7.
Article L229-9 (Inserted by Order no. 2004-330 of 15 April 2004 Article 1 II Official Journal of 17 April 2004)
Subject to respect of industrial secrecy and corporate secrecy, the draft national plan for the allocation of greenhouse gas emission quotas is subject to a consultation of the public according to the methods set by decree. It is published and notified to the European Commission. The plan is approved by a Conseil d'Etat decree.
Article L229-10 (Inserted by Order no. 2004-330 of 15 April 2004 Article 1 II Official Journal of 17 April 2004)
The quotas issued in the course of the first three-year period starting on 1st January 2005 are issued free of charge.
Article L229-11 (Inserted by Order no. 2004-330 of 15 April 2004 Article 1 II Official Journal of 17 April 2004)
The administrative authority notifies the operators of facilities authorised to emit greenhouse gases of the total amount of emission quotas allocated for each period covered by a plan, and the quantity issued each year.
A Conseil d'Etat decree sets the methods for notification of the decisions regarding allocation and issuing of quotas, the conditions under which the corresponding information is made accessible to the public, the rules for the annual issuing of quotas, the applicable rules in the event of a change of operator or the winding-up or transfer of activity, and the conditions under which the decisions regarding the allocation and issuing of quotas provided for in article L. 229-8 may be contested.
Article L229-12 (Inserted by Order no. 2004-330 of 15 April 2004 Article 1 II Official Journal of 17 April 2004)
I. - The administrative authority may, after consultation of the public, request of the European Commission that the facilities be temporarily excluded, until 31 December 2007, from the scope of obligations provided for in article L. 229-7.
The administrative authority sets, in application of the provisions of Book V, prescriptions relating to the monitoring of the facilities excluded and to the limiting of their greenhouse gas emissions in the same proportion as if these facilities were subject to the obligations stipulated by article L. 229-7.
The operators of these facilities are subject to monitoring, declaration and verification requirements equivalent to those set out for the operators taking part in the system of exchange of emission quotas and, if they exceed the limit placed on gas emissions that has been stipulated for them, they may be obliged to pay a fine of the same amount, per tonne of surplus carbon dioxide, as that provided for in article L. 229-18 for an unreturned quota.
II. - For the three-year period beginning on 1st January 2005, the administrative authority may, with the agreement of the European Commission, allocate to an operator extra, non-transferable emission quotas in the event of external circumstances that are unforeseeable both for the operator and the State, and resulting in a substantial modification of the emissions from one or more of the operator's facilities which could not reasonably be avoided.
Article L229-13 (Inserted by Order no. 2004-330 of 15 April 2004 Article 1 II Official Journal of 17 April 2004)
The quotas are valid for the duration of the plan under which they are allocated until they are used. The quotas issued or acquired in the course of an allocation period and which have not been used in the course of
that period and cancelled in application of article L. 229-14 are returned to the State and cancelled at the start of the following period. The same quantity of emission quotas valid for the new period is simultaneously issued to the people who held the cancelled quotas.
However, at the end of the three-year period beginning on 1st January 2005, if application of the previous paragraph might compromise respect of the international undertakings of France to control greenhouse gas emissions, the administrative authority may decide to limit the issuing of emission quotas at the beginning of the following period, by virtue of this paragraph, only to the operators of facilities authorised to emit greenhouse gases and to a quantity equal, for each operator, to the difference between that which was allocated to the operator for the previous period and the amount of the emissions from the operator's facilities during the same period.
Article L229-14 (Inserted by Order no. 2004-330 of 15 April 2004 Article 1 II Official Journal of 17 April 2004)
I. - The quotas returned to the State each year by the operators in application of article L. 229-7 are cancelled. II. - The people holding quotas may request their cancellation by the State at any moment. III. - The quotas are returned on the basis of a declaration, made by each operator, of the greenhouse gas
emissions from its facilities, checked, at the cost of the operator, by a body approved for this purpose by the administrative authority, then validated by the classified facilities inspection department. The declaration of greenhouse gas emissions by an operator is considered as validated if the classified facilities inspection department has not made any observations within a period set by the ruling stipulated in article L. 229-6.
Article L229-15 (Inserted by Order no. 2004-330 of 15 April 2004 Article 1 II Official Journal of 17 April 2004)
I. - The greenhouse gas emission quotas issued to the operators of facilities authorised to emit these gases are personal properties exclusively materialised by being listed on the account of their holder on the national register mentioned in article L. 229-16. They are negotiable, transmissible by transfer from account to account, and confer
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ENVIRONMENTAL CODE identical rights upon their holders. They may be transferred as soon as they are issued, subject to the provisions of II of article L. 229-12 and article L. 229-18.
The transfer of ownership of quotas results from their listing, by the holder of the national register, on the account of the beneficiary on the date and under the conditions defined by decree.
II. - Emission quotas can be acquired, held and transferred by any operator of a facility for which an authorisation to emit greenhouse gases has been issued by a member State of the European Community, by any national of a member State of the European Community, by any legal entity having its headquarters there, and by the member States themselves.
On the condition that a mutual recognition agreement has been concluded by the European Community with one of the third-party countries mentioned in annexe B of the protocol made in Kyoto on 11 December 1997 to the United Nations framework agreement on climate change, and that this country has ratified this protocol, quotas can be acquired, held and transferred by nationals of this country and by legal entities having their headquarters there.
III. - The same legal effects are attached, on the national territory, to the emission quotas issued by the French authorities and to those issued by the competent authority of any member State of the European Community or any other State which is party to a mutual recognition agreement concluded with the European Community.
IV. - When, in the reserve constituted in application of V of article L. 229-8, the State no longer has any quotas to allocate to operators, these operators are released from the obligations set by the present section, notably the obligation to return quotas set out in article L. 229-7. Quotas are not allocated to them under the plan in progress. The competent authority sets these operators prescriptions in application of the provisions of Book V of the present Code, under the conditions stipulated in the second and third paragraphs of I of article L. 229-12.
Article L229-16 (Inserted by Order no. 2004-330 of 15 April 2004 Article 1 II Official Journal of 17 April 2004)
A national register of greenhouse gas emission quotas keeps an account of the quotas issued, held, transferred and cancelled. Any person mentioned in II of article L. 229-15 may hold quotas and open an account in this register.
The national register has one account for each person who holds quotas. It is accessible to the public under the conditions set by decree. The holding of the national register may be delegated to a legal entity designated by a Conseil d'Etat decree, which
decree also sets the methods of application of the present article, notably the tasks of the proxy, the conditions of its remuneration and the methods for listing the different operations relating to quotas on the national register.
Article L229-17 (Inserted by Order no. 2004-330 of 15 April 2004 Article 1 II Official Journal of 17 April 2004)
After agreement from the European Commission, the State may authorise several operators of facilities of the same activity to share, in the course of the three-year period beginning on 1st January 2005 and in the course of the following five-year period, the management of the quotas relating to each facility.
When the authorisation is granted to several operators, they appoint a representative to whom the provisions of the present section apply.
A single account is opened in the national register for the facilities whose quotas are managed jointly. The representative appointed by the operators has the task of managing the quotas listed on this account. If the representative avoids the sanctions stipulated in II of article L. 229-18 in the event that the emission quotas are not returned, the operator of each facility becomes responsible for returning the quotas corresponding to the emissions from its facility and incurs the sanctions provided for by the present if it breaches this obligation.
A Conseil d'Etat decree sets the methods of implementation of the provisions of the present article.
Article L229-18 (Inserted by Order no. 2004-330 of 15 April 2004 Article 1 II Official Journal of 17 April 2004)
I. - An operator may not transfer the quotas that it holds, within the limit of those that it has been issued with for a facility and in a set year:
- in case of absence of a declaration of emissions from the facility in the course of that year by the operator before a date set by decree;
- or when the classified facilities inspection department ascertains that the declaration relating to the emissions of the facility in the course of that year does not meet the conditions set by the ruling provided for in article L. 229-6. The decision, which must be reasoned, is made at the latest on expiry of the period mentioned in III of article L. 229-14.
The operator retrieves its quotas when its declaration has been deemed satisfactory or, failing this, when the volume of emissions has been decided ex officio by the administrative authority, based on a fixed calculation established two months at the latest after the operator has been informed of the unsatisfactory nature of its declaration or, in case of absence of declaration, at the latest on 31 May. A ruling sets the methods used for this calculation and the conditions under which the operator is consulted beforehand.
II. - Each year, when at a date set by decree the operator or the representative has not returned a sufficient number of quotas to cover its emissions of the previous year, and when the authority responsible for holding the national register has informed the administrative authority of the non-fulfilment of this obligation and of the surplus emissions of greenhouse gases compared with the number of quotas returned, the competent authority issues a summons to the operator or the representative to fulfil this obligation within a period of one month.
The administrative authority imposes a fine, proportional to the number of unreturned quotas, on the operator or representative who does not respect the stipulations of the summons within the period set out. Payment of the fine does
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ENVIRONMENTAL CODE not release the operator or the representative from the obligation to return a quantity of quotas equal to the volume of surplus emissions. It must fulfil this obligation the following year at the latest. The quotas that it holds remain inaccessible and a new fine is imposed in each of the following years until it has fulfilled this obligation.
The amount of the fine is fixed at 40 euros per unreturned quota for the three-year period beginning on 1st January 2005 and at 100 euros for the following periods. Recovery of the sums is due to the Treasury according to the same principles as for state debts not affected by tax and property.
The decision imposing the fine may also stipulate that the name of the operator or the representative be made public once the decision becomes final.
Article L229-19 (Inserted by Order no. 2004-330 of 15 April 2004 Article 1 II Official Journal of 17 April 2004)
The methods of application of the present section are set by a Conseil d'Etat decree.
SECTION III Implementation of the project activities provided by the protocol made in Kyoto
on 11 December 1997 to the United Nations framework agreement on climate change of 9 May 1992
Articles L229-20 to L229-24
Article L229-20 (Inserted by Act no. 2005-1319 of 26 October 2005 Article 6 Official Journal of 27 October 2005)
I. - Within the meaning assigned by the present chapter, a project activity is a project approved in accordance with articles 6 or 12 of the protocol made in Kyoto on 11 December 1997 to the United Nations framework agreement on climate change and with the decisions made by the parties for their implementation by one or several States mentioned in annexe I of the United Nations framework agreement on climate change and which have ratified the Kyoto Protocol.
II. - The conditions under which the Minister for the environment approves the project activities are set by the Conseil d'Etat decree provided for in article L. 229-24. This approval is considered as an authorisation, for the people who seek it, to take part in the project activity concerned.
Article L229-21 (Inserted by Act no. 2005-1319 of 26 October 2005 Article 6 Official Journal of 27 October 2005)
Subject to France satisfying the eligibility criteria relating to the transfers and acquisitions of units defined by the Kyoto Protocol mentioned above and by the decisions made by the parties for its implementation, any person may acquire, hold and transfer the units described in article L. 229-22 resulting from the implementation of project activities.
In order to ensure respect of the international undertakings of France to control greenhouse gas emissions, the Minister for the environment may limit the carrying-over of the units held in the national register mentioned in article L. 229-16 at the end of each period of five years set out in I of article L. 229-8 under the conditions set by the Conseil d'Etat decree provided for in article L. 229-24.
Article L229-22 (Inserted by Act no. 2005-1319 of 26 October 2005 Article 6 Official Journal of 27 October 2005)
The emission reduction units and the certified emission reduction units respectively issued in application of articles 6 and 12 of the Kyoto Protocol mentioned above and the decisions made by the parties for their implementation are personal properties exclusively materialised by being listed on the account of their holder in the national register mentioned in article L. 229-16.
Each of these units represents the emission of the equivalent of one tonne of carbon dioxide.
Article L229-23 (Inserted by Act no. 2005-1319 of 26 October 2005 Article 6 Official Journal of 27 October 2005)
The project activities provided by article 6 of the Kyoto Protocol mentioned above, implemented on the national territory, directly reducing or limiting the emissions from the facilities described in article L. 229-5, may only give rise to the issuing of emission reduction units after cancellation of an equivalent quantity of greenhouse gas emission quotas in the account held by the operator of the facility concerned in the national register mentioned in article L. 229-16.
Article L229-24 (Inserted by Act no. 2005-1319 of 26 October 2005 Article 6 Official Journal of 27 October 2005)
A Conseil d'Etat decree sets the methods of implementation of the present section.
BOOK III Natural spaces Articles L310-1 to
L300-3 Article L300-1
The provisions relating to the prevention of forest fires and protective forests are set forth in the Code forestier (Book III, Title II and Book IV, Title I).
Article L300-2 The provisions relating to wooded areas registered by land-use maps are set forth in the Code de l'urbanisme (Book
I, Title III).
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ENVIRONMENTAL CODE Article L300-3 (Order no. 2004-178 of 20 February 2004 Article 6 I Official Journal of 24 February 2004) (Act no. 2004-1343 of 9 December 2004 Article 78 XIV e 1 Official Journal of 10 December 2004)
The provisions relating to the Heritage Foundation for its contribution to safeguarding the noteworthy elements in natural or landscaped spaces threatened with damage, disappearance or dispersion are listed in article L. 143-2 of the Code du Patrimoine, reproduced hereunder:
"Art. L. 143-2 - The purpose of the "Heritage Foundation" is to promote the knowledge, conservation and improvement of the national heritage. It is concerned with the identification, preservation and improvement of unprotected heritage.
"It contributes to safeguarding the monuments, edifices, sets of movables or noteworthy elements in natural or landscaped spaces threatened with damage, disappearance or dispersion. It thus contributes to employment, integration, training and transmission of know-how in the sectors of restoration and enhancement of heritage and sites.
"It provides its assistance to public or private entities, notably via subsidies, for the acquisition, maintenance, management and presentation to the public of these assets, whether or not they have been subject to protection measures provided for by the present Code.
"It may also acquire the assets mentioned in the third paragraph when this acquisition is required for the safeguarding actions that it sets up.
"It may attribute a label to unprotected heritage and to sites. This label may be taken into account in the granting of the approval provided for in 1 ter of II of article 156 of the Code Général des Impôts.
TITLE Inventory and improvement of natural heritage Articles L310-1 to
L310-3
Article L310-1 I. - The State shall compile a département inventory of natural heritage in each département. II. - This inventory registers: 1° The sites, landscapes and natural environments, defined in application of the texts, of which the list is determined
by decree; 2° The environmental protection measures taken in application of the texts, of which the list is determined by
decree, in addition to the related means of management and improvement where appropriate. III. - The département inventory of natural heritage is subject to periodical modifications in order to take into account
the changes that have occurred in the département, in the identification of sites, landscapes and environments, and in the protective measures referred to in the previous paragraphs.
IV. - This inventory is made available to the public for consultation. It is also made available to the investigating commissioner or the investigating commission in the event of a public inquiry concerning a structure that falls within the sphere of this inventory. It is given to the approved département environmental protection associations concerned upon request.
Article L310-2 (Order no. 2004-637 of 1 July 2004 Article 27 IV Official Journal of 2 July 2004)
A guidance report, drawn up by the State, sets forth the measures provided for within the framework of its competence, to ensure the protection and management of natural sites, landscapes and environments.
The draft guidance report is submitted to the general council for its opinion. The draft guidance report shall then be made available to the public for two months. It is approved by a prefectural
decision and published. The guidance report is revised on the Préfet's initiative, at the end of a five-year period at the most, in accordance
with the procedure provided for its adoption. A Conseil d'Etat decree sets out the conditions for the application of the present Article.
Article L310-3 As stipulated in Article 38-1 of the changed Spatial Planning and Development Act no. 95-115 of 04 February 1995,
reproduced hereinafter: "Art. 38-1. - The management funds for natural environments contribute to financing projects of collective interest,
which contribute to protecting, rehabilitating or managing natural environments and habitats. The implementation thereof takes into account the guidelines of the community services scheme for natural and
rural areas."
TITLE II The coastline Articles L321-1 to
L322-14
CHAPTER I Coastal protection and management Articles L321-1 to
L321-12
SECTION I
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ENVIRONMENTAL CODE General provisions Articles L321-1 to
L321-2
Article L321-1 I. - The coast is a geographical entity, which calls for a specific development, protection and improvement policy. II. - The implementation of this policy of general interest involves coordinating the actions of the State and local
authorities, or their groups, with the aim of: 1° Implementing a research and innovation effort directed towards the distinctive characteristics and resources of
the coast; 2° Protecting biological and ecological balances, fighting erosion, and preserving sites, landscapes and heritage; 3° Preserving and developing economic activities related to coastal waters, such as fishing, marine culture, port
activities, shipbuilding and repairs, and sea transport; 4° Supporting and developing farming or forestry activities, industry, crafts and tourism in the coastal area.
Article L321-2 For the purpose of the present Chapter, metropolitan communes and overseas départements are considered
coastal communes when they are: 1° Located beside seas and oceans, saltwater lakes and expanses of inland water of a surface area exceeding 1
000 hectares; 2° Located beside estuaries and deltas when they are downstream from the saltwater demarcation line and
contribute to the economic and ecological coastal balance. The list of these communes is determined by a Conseil d'Etat decree, after consultation with the municipal councils concerned.
SECTION II Planning and development Articles L321-3 to
L321-7
Article L321-3 Facilities for yachts are organised to fit in with natural and urban sites and respect the standards decreed by the sea
improvement schemes defined in Article 57 of Act no. 83-8 of 07 January 1983 relating to the distribution of competence between communes, départements, regions and the State.
Article L321-4 The licensing authority for a marina grants a concession by imposing, if necessary, the restoration of an area with
an artificial beach, or a conchological or aquacultural potential equivalent to the one that will have been destroyed by construction work.
Article L321-5 The decisions for use of public coastal areas take into account the orientation of the areas concerned and
neighbouring land areas, in addition to the requirements for coastal site, landscape and biological resource preservation; for this reason, they are coordinated with those concerning neighbouring land for public use.
Subject to specific enactments concerning national defence and maritime safety requirements, any substantial change in the use of public coastal areas shall be submitted for a preliminary public enquiry in accordance with the modes of implementation provided for in Chapter III of Title II of Book I of the present code.
Article L321-6 Subject to sea defence operations being carried out and the construction of structures and installations required for
maritime safety, national defence, sea fishing, saltworks and marine cultures, the natural state of the seashore, outside port and industrial port areas, may not be damaged, especially by dyke construction, drainage,
rock filling or embankment forming, except for structures or installations related to providing a public service or carrying out construction work for which the seaside location is essential for topographical or technical reasons that have been declared of public interest.
However, construction work carried out prior to 03 January 1986 shall continue to be governed by previous legislation.
Article L321-7 Other special coastal provisions concerning works, construction and installations are set forth in the Code de
l'urbanisme (Book I, Title IV, Chapter VI).
SECTION III Extraction of materials Article L321-8
Article L321-8 The extraction of materials not referred to in Article 2 of the Code minier is limited or forbidden should they risk
compromising, either directly or indirectly, beaches, coastal dunes, cliffs, marshes, mudflats, seagrass and spawning beds, natural pools of living shellfish and marine culture installations.
This provision may not however hinder dredging work carried out in ports and their canals, or work carried out to preserve or protect remarkable natural areas.
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ENVIRONMENTAL CODE SECTION IV Access to the shore Articles L321-9 to
L321-10
Article L321-9 (Act no. 2002-276 of 27 February 2002 Article 115 Official Journal of 28 February 2002)
Pedestrian access to beaches is free unless special provisions are required for legitimate reasons of safety, national defence or environmental protection.
Admission-free access to the public is the fundamental purpose of beaches, in the same way as their use for fishing and marine culture activities.
Beach concessions are granted or renewed subsequent to public enquiry. They preserve free movement on the beach and allow the free use of a significantly wide area along the sea for the public.
All concession contracts determine the width of this area, taking into account the characteristics of the site. The public is notified of the presence of beach concessions and operating sub-contractors by the concessionary. Unless authorisation is given by the Préfet, after the Mayor's approval, the flow and parking of motor vehicles other
than emergency, police and works vehicles are forbidden, outside surfaced lanes, on the seashore, and the dunes and beaches belonging to the public, or privately owned but open to the public.
Priority for granting beach concessions is given to communes or groups of communes or, after consultation with the aforementioned should they relinquish their priority, to public or private individuals after publication and opening to competition. Potential operating sub-contractors are also approved after publication and opening to competition.
The modes of application of the present Article are determined by a Conseil d'Etat decree.
Article L321-10 Other provisions relating to access to the shore are governed by Articles L. 160-6, L. 160-6-1, L. 160-7 and L. 160-8
of the Code de l'urbanisme, reproduced hereinafter: "Art. L. 160-6. - Privately owned properties in public coastal areas are encumbered with an easement of a
three-metre wide strip of land to provide a right of way exclusively for pedestrians. The administrative authority may, by a justified decision, made after consultation with the municipal council or
councils concerned and in view of the result of a public enquiry carried out for an expropriation order: a) Change the line or characteristics of the easement, in order to ensure the continuity of the pedestrian way or free
access for pedestrians to the seashore, due to the presence of obstacles of all natures on the one hand, and take into account pre-existent paths or local rules on the other hand. The modified line may exceptionally encumber properties that are not within public coastal areas;
b) Suspend it, under exceptional circumstances. Except in the event of an easement being the only means of ensuring the continuity of a pathway for pedestrians or
their free access to the seashore, the easement introduced in paragraphs 1 and 2 above, may not encumber plots of land located less than fifteen metres from housing built before 01 January 1976, or encumber land adjoining housing and enclosed walls in existence on 01 January 1976."
"Art. L. 160-6-1. - A pedestrian right of way, running transversally to the shore, may be introduced on existing private ways and paths for collective use, with the exception of those reserved for professional use, according to the procedure provided for in the second paragraph of Article L. 160-6.
This right of way serves the purpose of connecting public highways to the seashore or footpaths providing immediate access thereto, in the absence of a public highway allowing access to the seashore located less than five hundred metres therefrom.
The provisions of Article L. 160-7 apply to this easement." "Art. L. 160-7. - The easement introduced by Article L. 160-6 shall only provide the right to indemnity if undoubted,
direct, material damage has been caused to the owner. An application for indemnity must, with the risk of debarment, reach the competent authority within a time limit of six
months from the date on which the damage was caused. The indemnity is either determined by an out-of-court settlement, or, in the event of a conflict, under the conditions
defined in the second paragraph of Article L. 160-5. The amount of the indemnity for loss of use is calculated taking into account the former customary use of the land. The civil liability of the land, lane and path owners encumbered by the rights of way defined in Articles L. 160-6 and
L. 160-6-1 shall not be engaged in the event of damages caused or suffered by the beneficiaries of the aforementioned rights of way."
"Art. L. 160-8. - A Conseil d'Etat decree stipulates the conditions of application for Articles L. 160-6 and L. 160-7 and sets the date of their entry into force.
The decree provided in the previous paragraph also determines the cases in which the distance of fifteen metres, laid down in Article L. 160-6 (paragraph 3), may be reduced in exceptional circumstances."
SECTION V Engineering structures connecting islands to the mainland Article L321-11
Article L321-11 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 entry into force 01 January 2002)
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ENVIRONMENTAL CODE At the request of the majority of the competent communes or groups of communes in terms of the development,
town planning or environment of a sea island connected to the mainland by an engineering structure, the general council may introduce a département toll to be paid by the passengers of each land motor vehicle that uses the structure between the mainland and the island.
The toll mentioned in the first paragraph is set and collected by and for the département. It may be collected by the structure operator with a view to repaying it to the département.
The amount of this toll, which may not exceed 3.05 euros per vehicle, is determined by the general council after agreement with the majority of the communes and groups of communes mentioned in the first paragraph.
The general council's decision may provide for different rates or a free crossing according to the variety of categories of users, either in order to take into account a necessity of general interest with relation to protected natural areas, or the specific situation of certain users, especially those who live or work on the island in question, or live in the département concerned, or fulfil a public service mission.
The income from the tax is included in the département budget. It is used exclusively to finance protective and management measures in natural areas on the islands concerned, within the framework of an agreement signed between the Préfet, the general council and the island communes and groups of communes mentioned in the first paragraph. Once the expenses related to its collection and the operations for which the département is the contracting authority have been deducted, it is transferred to the budget of the communes and groups of communes concerned within the framework of the aforementioned agreement.
A Conseil d'Etat decree sets out the conditions for application of the present Article.
SECTION VI Maritime passenger transport to protected areas Article L321-12
Article L321-12 (Order no. 2000-916 of 19 September 2000 Article 1 I Official Journal of 22 September 2000 entry into force 01 January 2002) (Act no. 2002-276 of 27 February 2002 Article 166 Official Journal of 28 February 2002)
As stipulated in Article 285 quater of the Code des douanes, reproduced hereinafter: A tax owed by maritime public transport companies is collected. This tax is based on the number of passengers
sailing to the destination of: - A natural site, listed or registered in accordance with the Title of the law of 02 May 1930, which aims to reorganise
the protection of natural monuments and sites of an artistic, historical, scientific, legendary or picturesque nature; - A national park created in application of Article L. 241-1 of new Book II of the Code Rural; - A nature reserve created in application of Article L. 242-1 of new Book II of the same code; - A site within the Coastal Protection Agency estate or for which a protective easement has been established, in
application of Article L. 243-1 of new Book II of the same code; - Or a port serving exclusively or mainly one of the protected areas mentioned above but without having been
included. The list of sites, parks, reserves and ports mentioned in the second to sixth paragraphs is determined by a decree.
Sites registered in accordance with the aforementioned law of 02 May 1930 may only appear on this list at the request of the communes concerned.
The tax is added to the price asked of the passengers. It is recorded, collected and checked by the customs services with the same guarantees, sanctions and privileges as customs duties. The State receives a levy from this income to cover the cost of collection, equal to 2.5 per cent of the said income. The rate of the tax is determined by a ruling from the Minister for the Budget within a limit of 1.52 euros per passenger. This ruling may provide for different rates or a free crossing according to the variety of categories of users, either in order to take into account a necessity of general interest with relation to protected natural areas, or the specific situation of certain users, especially those who live or work in the protected area or on the island, of which all or part of the territory belongs to the protected area.
The tax is collected for the public legal body which manages the protected natural area, or in the absence thereof, the commune of the territory in which the site is located or which is appointed to ensure its preservation.
A Conseil d'Etat decree sets out the conditions for application of the present Article.
CHAPTER II Coastal Protection Agency Articles L322-1 to
L322-14
SECTION I General provisions Articles L322-1 to
L322-2
Article L322-1 (Act no. 2002-276 of 27 February 2002 Article 160 I, II Official Journal of 28 February 2002) (Act no. 2005-157 of 23 February 2005 Article 133 I, II Official Journal of 24 February 2005)
I. - The Coastal Protection Agency is a public administrative body with the responsibility of conducting land-use policies for the protection of coastal areas, natural sites and ecological balance, after consultation with municipal councils and in partnership with interested territorial authorities:
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ENVIRONMENTAL CODE 1° In the coastal cantons delimited as of 10 July 1975; 2° In communes located close to seas, oceans, saltwater lakes or inland expanses of water of a surface area
exceeding 1 000 hectares; 3° In communes located close to estuaries and deltas, when all or part of their banks are downstream from the
saltwater demarcation line; 4° Repealed II. - It may present public authorities with suggestions concerning its mission. It may also suggest suitable
measures to prevent construction work on the land adjacent to public coastal areas. In order to promote the integrated management of coastal areas, the Coastal Protection Agency may also carry out
missions in the public coastal area it has been allocated or entrusted with. III. - Its intervention may be extended by a ruling of the Préfet and after assessment by the administrative board to
the sectors geographically bordering the cantons and communes mentioned in I, thus forming with them an ecological or landscape unit, and to the wetlands located in the coastal départements .
Article L322-2 Decrees approved by the Conseil d'Etat determine the conditions for application of the present Chapter.
SECTION II Coastal Protection Agency heritage Articles L322-3 to
L322-10-3
Subsection 1 Constitution and alienations Articles L322-3 to
L322-8
Article L322-3 In order to meet the objectives defined in Article L. 322-1, the Coastal Protection Agency may carry out all types of
property transactions. However, the alienation of real-estate from its own estate may only be granted once authorisation has been given by a Conseil d'Etat decree, after a proposal from the governing board decided on a majority of three quarters of the votes of all members present or represented.
Article L322-4 The Coastal Protection Agency may place a compulsory purchase order on property rights and, in the absence of
the département, exercise the pre-emption right provided for in Article L. 142-3 of the Code de l'urbanisme.
Article L322-5 When the Coastal Protection Agency acquires property encumbered by easements established in application of the
Code de l'urbanisme by amicable means, the purchase price is assessed in relation to the value of the property given the existing easements, which shall not qualify for an additional charge.
Article L322-6 (Act no. 2002-276 of 27 February 2002 Article 160 III Official Journal of 28 February 2002)
The Coastal Protection Agency may voluntarily administrate real-estate belonging to the State's public or private estate. However, should the previously public administration service be granted financial autonomy, the property is allocated to the public body against payment, or transferred to it in accordance with ordinary law.
The Coastal Protection Agency acts as a substitute for the State in the management of real-estate which have been allocated to it: it enters into all of the agreements concerning them, especially those set out in Article L. 322-9, collects all of their income and bears the expenses pertaining to them, whatever they may be. These provisions apply to national buildings given to the establishment as an endowment.
National buildings which have been allocated to it or given as an endowment may only be closed down or abandoned under the conditions provided for alienation of its own estate.
Article L322-7 The purchase and exchange of real-estate located in the areas defined in Article L. 322-1 carried out by the Coastal
Protection Agency are exempt from stamp duty, registration fees and cadastral tax.
Article L322-8 Gifts and bequests of buildings located in the areas defined in Article L. 322-1 are exempt from gift tax when they
are made to the Coastal Protection Agency.
Subsection 2 Management Articles L322-9 to
L322-10-3
Article L322-9 (Act no. 2002-276 of 27 February 2002 Article 161 Official Journal of 28 February 2002)
The estate, which comes under the authority of the Coastal Protection Agency, includes property which has been purchased in addition to that which has been allocated, assigned, entrusted or given up for management by the State. The Agency's own estate is comprised of land of which it has become the owner and that it has decided to keep in order
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ENVIRONMENTAL CODE to carry out its mission as defined in Article L. 322-1. The estate, which comes under the authority of the Coastal Protection Agency, is public property, with the exception of unclassified land purchased for its own estate. This estate is open to the public subject to the vocation and fragility of each area.
The real-estate properties on the estate, which comes under the authority of the Coastal Protection Agency, may be managed by local authorities or groups thereof, public bodies, or authorised specialised foundations and associations which pay the expenses and collect corresponding income. Priority is given to the local authorities, should they so require it, in the territory on which the real-estate properties are located. Agreements signed for this reason between the Coastal Protection Agency and managers expressly provide for the use to be given to the land, as this use must contribute to meeting the objectives defined in Article L. 322-1.
The Agency and manager may authorise by means of an agreement, temporary and specific use of the real-estate should this use be compatible with the mission carried out by the Agency, as defined in Article L. 322-1.
In the event of this public estate being used for agricultural purposes, priority shall be given to the farmer present on the premises at the time of the real-estate concerned becoming part of the estate under the authority of the Coastal Protection Agency. In the absence of a farmer on the premises, the Agency, and manager when appropriate, shall consult professional organisations in order to choose a farmer. The agreement with the aforementioned determines the rights and obligations of the farmer in application of a framework agreement approved by the governing board and sets forth the methods for calculating fees.
Article L322-10 (Act no. 2002-276 of 27 February 2002 Article 162 I Official Journal of 28 February 2002) (Act no. 2005-157 of 23 February 2005 Article 134 Official Journal of 24 February 2005)
The rehabilitation and building work carried out on real-estate under the authority of the Coastal Protection Agency, in order to ensure the preservation, protection and improvement of the property, may be entrusted to one of the public or private bodies referred to in Article L. 322-9 within the framework of an occupancy agreement which shall not exceed thirty years. The entrusted missions must be in keeping with the mission carried out by the Agency. This agreement may authorise the beneficiary to grant occupation authorisations, which do not constitute rights in rem, for a duration which may not exceed that of the agreement.
The beneficiary is authorised to receive direct payment of the income from the real-estate. In this case, he or she must periodically pay the surplus income, which has not been used to improve or manage the property, back to the Agency. The beneficiary is chosen freely. On expiration of the agreement, the manager may not be entitled to any indemnity for the improvements made to the building.
The Agency may bear part of the cost of the missions described in the first paragraph if this part is lower than that of the beneficiary of the agreement, in accordance with the methods specified by the said agreement.
Article L322-10-1 (Act no. 2002-276 of 27 February 2002 Article 162 II Official Journal of 28 February 2002) (Act no. 2003-591 of 02 July 2003 Article 31 III 8° Official Journal of 03 July 2003)
Individuals who are given the responsibility, by the managers referred to in Article L. 322-9, of ensuring the protection of the estate administered by the Coastal Protection Agency constitute the coast guards.
To exercise the police powers defined in the present Article, the coast guards are commissioned by the State representative in the département, on recommendation from the director of the Coastal Protection Agency, and are then sworn. In this case, the number of guards is that mentioned in 3° of Article 15 of the Code de procédure pénale.
The coast guards and officers referred to in Article L. 332-20 of the present code record on official reports the infringements of rulings made by the municipalities and préfectures relating to access to the land concerned and the use thereof, and of those made in application of Articles L. 2213-2, L. 2213-4, L. 2213-23, L. 2215-1 and L. 2215-3 of the Code général des collectivités territoriales, when it concerns the estate administered by the Coastal Protection Agency.
The coast guards may also record on official reports infringements of the provisions of the present Title and those of the Code du domaine de l'état concerning the estate administered by the Coastal Protection Agency.
Article L322-10-2 (Inserted by Act no. 2002-276 of 27 February 2002 Article 162 III Official Journal of 28 February 2002)
Infringements of the provisions mentioned in the previous Article are punishable by a fine stipulated for class 4 infringements.
Article L322-10-3 (Inserted by Act no. 2002-276 of 27 February 2002 Article 162 IV Official Journal of 28 February 2002)
The official reports issued by coast guards are used as evidence until proof of the contrary. They are given or sent directly to the Director of Public Prosecution, five clear days after the date on which the infringement was recorded, without which they shall be null and void.
Infringements may give rise to the set fine procedure in accordance with the provisions of Articles 529 to 529-2 of the Code de Procédure Pénale.
SECTION III Administration Articles L322-11 to
L322-13-1
Subsection 1
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ENVIRONMENTAL CODE Governing board Articles L322-11 to
L322-12
Article L322-11 The Coastal Protection Agency is administered by a governing board comprised of an equal number of State
representatives and qualified persons on the one hand, and Members of Parliament and members of the deliberative bodies of the local authorities concerned by the activity of the Coastal Protection Agency on the other hand.
Article L322-12 The chairman of the governing board is elected from within the council.
Subsection 2 Shore and coastal councils Article L322-13
Article L322-13 (Act no. 2002-276 of 27 February 2002 Article 163 Official Journal of 28 February 2002)
The Coastal Protection Agency is comprised of shore and coastal councils. These councils are comprised of members elected from within by the deliberative bodies of the local authorities.
They suggest purchasing transactions and are consulted on the operations envisaged by the governing board of the public body.
The mayors of the communes within the territory for which operations are proposed or envisaged must be heard if they so wish.
The composition, operation and territorial boundaries of these councils are determined by a Conseil d'Etat decree. In particular, they make any proposals to the governing board concerning the conditions for developing and
managing the heritage of the public body and the partnership agreements between the Agency and the territorial authorities, especially the départements, regions and their groups, defining on a long-term basis the objectives and means mobilised by the parties for the implementation of the mission defined in Article L. 322-1.
Subsection 3 Management and personnel Article L322-13-1
Article L322-13-1 (Inserted by Law no. 2005-157 of 23 February 2005 Article 133 III Official Journal of 24 February 2005)
In accordance with the partnership mentioned in article L. 322-1 and in order to accomplish the tasks entrusted to it, the Coastal Protection Agency may have local civil service agents at its disposal, as well as its own personnel.
In accordance with III of article L. 322-1, it may also have at its disposal contractual public establishment agents working in wetlands on an availability basis.
SECTION IV Financial provisions Article L322-14
Article L322-14 In order to accomplish its mission, the Coastal Protection Agency has resources at its disposal as defined by a
Conseil d'Etat decree.
TITLE III Parks and reserves Articles L331-1 to
L333-4
CHAPTER I National parks Articles L331-1 to
L331-25
SECTION I Creation and general provisions Articles L331-1 to
L331-7
Article L331-1 The territory of all or part of one or several communes may be classified a national park by a Conseil d'Etat decree,
when the preservation of fauna, flora, ground, subsoil, atmosphere, water and the natural environment in general, is of special interest and it is important to preserve the area against the effect of natural damage and remove any artificial interventions which could alter its appearance, composition and development. Classification decrees may affect public coastal areas, and French territorial and inland waters.
Article L331-2 A decree to create a national park shall be made after a public enquiry and consultations determined by a Conseil
d'Etat decree.
Article L331-3
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ENVIRONMENTAL CODE The decree mentioned in Article L. 331-2 may subject the inside of a park to a specific regime, and where
appropriate, forbid hunting and fishing, industrial and commercial activities, the performance of public and private works, the extraction of concessible or non-concessible materials, the use of water, public traffic using whatever means, any action liable to damage the natural development of the fauna and flora, and more generally, alter the character of the national park.
Moreover, it regulates farming, pastoral or forestry activities.
Article L331-4 Advertising is forbidden in national parks.
Article L331-5 Within the territory of a national park, it is compulsory to bury electrical or telephone networks or, for power lines
carrying under 19 000 volts, to use twisted cable techniques on house facades, when creating new electricity lines or new telephone networks.
When technical requirements or topographical constraints make burial impossible, or when the impact of burial is judged higher than the installation of an overhead line, an exception may be granted to this ban by a joint ruling from the minister for energy and telecommunications and the minister of the environment.
Article L331-6 A classification decree may delimit a peripheral area around a park as defined in Article L. 331-15.
Article L331-7 A Conseil d'Etat decree determines the modes of application for the present Chapter.
SECTION II Planning and management Articles L331-8 to
L331-14
Article L331-8 The planning and management of national parks, entrusted to an organisation that may be a government-owned
corporation, in which the local authorities concerned are represented, takes place in accordance with the conditions determined by the decree provided for in Article L. 331-7.
Article L331-9 Classification decrees determine the powers, duties and functions of the corporation mentioned in Article L. 331-8,
subject to the general rules laid down in the decree provided for in Article L. 331-7.
Article L331-10 Certain local authority powers, duties and functions, especially concerning private estate management, roads and
the police, may be transferred to the management organisation by a Conseil d'Etat decree, in order to be able to apply the provisions of Articles L. 331-3, L. 331-4 and L. 331-16.
Article L331-11 The resources of an organisation in charge of a national park are comprised of contributions from the State, and
possibly public authorities, all public and private subsidies, and if need be, service charges.
Article L331-12 Inside a national park, the various public administration authorities may, in collaboration with the organisation in
charge of the park, proceed with work and improvements of a social, economic and cultural nature in order to contribute to nature protection within the park.
Article L331-13 For implementation of the pre-emption right provided for in Article L. 142-3 of the Code de l'urbanisme, the
government-owned corporation in charge of the park may receive technical assistance from a competent land improvement and rural settlement company, under the conditions provided for in Article L. 141-5 of the Code Rural.
The government-owned corporation in charge of the park acts as a substitute for the State in the management of the buildings that it has been allocated. It enters into all of the agreements pertaining thereto, collects income therefrom and bears the expenses relating to them, whatever they may be. These provisions apply to national buildings given to the establishment as an endowment.
Article L331-14 The national park management organisations undertake the protection of particularly remarkable sensitive natural
areas. They cooperate with the regions and territorial authorities to fulfil this mission and encourage the economic, social
and cultural development of the geographical area or, for national parks located in mountainous regions, of the mountain range concerned.
Their contribution consists of participating in research, training, hosting, activity and technical assistance programmes, in addition to ensuring representation in the mountain committees provided for by Act no. 85-30 of 09 January 1985 concerning mountain development and protection, for national parks located in mountainous areas.
The organisations managing national parks are involved, when they so request, in drawing up land-use maps,
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ENVIRONMENTAL CODE governing schemes, or area schemes concerning the communes of which all or part of the territory is located in the park or its outlying area.
They may support joint unions that are competent in matters of planning, development and protection of a geographical area or a specific site or, for the national parks located in mountainous regions, of one or several valleys or of the local mountain range concerned.
SECTION III Improvement of peripheral Article L331-15
Article L331-15 In the peripheral area delimited according to the conditions set forth in Article L. 331-6, the various government
departments take every measure to enable all of the work and improvements of a social, economic and cultural nature to be done, according to a programme defined in collaboration with the management organisation provided for in Article L. 331-8, while making nature protection more effective in the park.
Advertising in these peripheral areas is strictly limited to the conditions stipulated by the Conseil d'Etat decree provided for in Article L. 331-7.
SECTION IV Integral nature reserves Article L331-16
Article L331-16 Areas known as "integral nature reserves" may be introduced to a national park in order to ensure greater protection
of certain areas of fauna and flora for scientific purposes. Specific constraints may be enacted by the decree which institutes them. Integral nature reserves are established while taking into account the living nature and character of the area. The provisions relating to integral nature reserves apply without prejudice to those in Chapter II of the present Title.
SECTION V Compensation Article L331-17
Article L331-17 Claims concerning compensation which may be owing to the parties involved, which are either the responsibility of
the organisation in charge of the national park, or the State in accordance with the conditions set forth in a Conseil d'Etat decree, are settled in the same way as matters of expropriation for reasons of public interest.
SECTION VII Criminal provisions Articles L331-18 to
L331-25
Subsection 1 Investigation of offences and proceedings Articles L331-18 to
L331-25
Article L331-18 The officers commissioned by the administrative authority and sworn by the Tribunal de Grande Instance to which
their place of residence is attached, report: 1° The infringements specially defined for the protection of national parks; 2° Infringements committed in these parks in terms of forests, hunting and fishing; 3° Infringements committed in the park's peripheral area to which infringements in terms of hunting and river fishing
are extended.
Article L331-19 (Order no. 2004-178 of 20 February 2004 Article 3 Official Journal of 24 February 2004)
I. - National park officers are authorised to report infringements, in the coastal zone of these parks and the nature reserves entrusted to organisations in charge of the said parks for management, of the regulations pertaining to the protection of this zone.
II. - They are also authorised to investigate and report in the coastal zone: 1° Infringements of shipping policing rules as defined in Article 63 of the Code disciplinaire et pénal de la marine
marchande, as far as the waterway and harbour police are concerned, and Article R. 1 of the same code; 2° The infringements defined in Articles L. 218-10 to L. 218-19 and in Article L. 218-73 of the present code; 3° Infringements of signposting policing rules defined in Articles L. 331-1, L. 331-2 and R. 331-1 of the Code des
ports maritimes; 4° The infringements defined in Articles L. 532-3, L.532-4, L. 532-7and L. 532-8 of the Code du Patrimoine; 5° The infringements defined in Articles 2, 5 and 6 of the decree of 9 January 1852 concerning salt-water fishing. III. - As officers in charge of fishing policing, they are able to carry out controls of the prerogatives provided for in
Article 14 of the aforementioned decree of 09 January 1852. IV. - They are commissioned by the administrative authority and sworn by the Tribunal de Grande Instance to which
their place of residence is attached, for this purpose.
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ENVIRONMENTAL CODE V. - Official reports are sent to the administrative or legal authorities according to the procedures provided for the
reported infringements. NB: the 3rd paragraph of article 7 of Act no. 89-874 is repealed by 14 of article 7 of Order no. 2004-178 of 20
February 2004 relating to the enacted part of the Code du Patrimoine, subject to the provisions of 7 of its article 8. The repeal will only take effect as of the publication of the regulatory provisions of the Code du Patrimoine.
Article L331-20 The officers authorised to report infringements in terms of forestry, hunting and fishing are able to report
infringements specially defined for the protection of national parks.
Article L331-21 The official reports issued by the officers mentioned in Articles L. 331-18 to L. 331-20 are used as evidence until
proof of the contrary. The official reports, which are issued for the infringements defined in Articles L. 331-18 and L. 331-20, are given or
sent directly to the Director of Public Prosecution.
Article L331-22 The official reports issued by the officers mentioned in Articles L. 331-18 and L. 331-20 for the infringements
mentioned in 1° and 2° of Article L. 331-18 are sent to the Director of Public Prosecution within five days at the latest, including the day on which the event, subject of the official report, was recorded. Failure to do so shall render the official report null and void.
Article L331-23 A copy of the official report issued for river or salt-water fishing is sent, according to the case, either to the head of
the administrative department in charge of fishing policing, or the head of the coastal affairs department.
Article L331-24 The officers mentioned in Articles L. 331-18 to L. 331-20 may confiscate the subject of the infringement of the
national park regulations and the instruments and vehicles used to commit the infringement.
Article L331-25 The infringements of the national parks' regulations mentioned in Article 529 of the Code de procédure pénale may
give rise to the set fine procedure.
CHAPTER II Nature reserves Articles L332-1 to
L332-27
SECTION I Classified nature reserves Articles L332-1 to
L332-10
Subsection 1 Creation Articles L332-1 to
L332-8
Article L332-1 I. - Parts of the territory of one or several communes may be classified a national nature reserve, when the
preservation of fauna, flora, ground, water, mineral and fossil deposits, and the natural environment in general, is of special interest and it is important to remove any artificial interventions likely to damage them. Classification may affect public coastal areas, and French territorial waters.
II. - The following are taken into consideration with this regard: 1° The preservation of animal or plant species and habitats that are endangered on all or part of the national
territory or display remarkable qualities; 2° The regeneration of animal or plant populations or their habitats; 3° The preservation of botanical gardens and arboretums forming reserves of endangered, rare or remarkable plant
species; 4° The preservation of biotopes and remarkable geological, geomorphological or speleological formations; 5° The preservation or formation of stopping points on the main wildlife migratory paths; 6° The scientific and technical studies that are essential for the development of human knowledge; 7° The preservation of sites of specific interest for the study of the evolution of life forms and the first human
activities.
Article L332-2 (Act no. 2002-92 of 22 January 2002 Article 24 III Official Journal of 23 January 2002) (Act no. 2002-276 of 27 February 2002 Article 109 II a Official Journal of 28 February 2002)
I. - The decision to classify a national nature reserve is pronounced by decree, to ensure the preservation of elements of national interest in a natural environment or to implement a Community ruling or an obligation imposed by an international agreement.
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ENVIRONMENTAL CODE The decision takes place after consultation with all of the local authorities concerned and, in mountainous regions,
the mountain authorities. In the absence of the owner's consent, the classification is pronounced by a Conseil d'Etat decree. II. - The regional council may, on its own initiative or upon request from the owners concerned, classify the
properties presenting an interest in terms of fauna, flora, and geological or paleontological heritage, or in a more general manner, the protection of natural environments, as regional nature reserves.
The decision to classify takes place after consultation with the regional scientific council for natural heritage and all of the local authorities concerned and, in mountainous regions, the mountain authorities.
The debate sets out the duration of the classification, the protective measures that are applicable in the reserve, the modes of its management and inspection of the requirements laid down in the classification act.
This deliberation takes place after the owner or owners have given their consent, both concerning the perimeter of the reserve and the protective measures that shall be applied there. In the absence of agreement, it is pronounced by a Conseil d'Etat decree.
Changes to a regional nature reserve take place in the same way. A Conseil d'Etat decree determines the provisions applicable in terms of the time laid down for expressing the
opinions provided for in the present Article, the declaration of public utility allocating the perimeter of the reserve, the withdrawal of classification, land registration and the owner's civil liability.
III. - In Corsica, the decision for classification of nature reserves is pronounced after deliberation in the Corsican Assembly, consultation with all of the territorial authorities concerned and notice from the State representative. The aforementioned may ask the Corsican territorial authority to proceed with the classification of a nature reserve in order to ensure the implementation of a Community ruling or an obligation imposed by an international agreement. If this is not granted, the State proceeds with the classification according to the modes of implementation defined by a Conseil d'Etat decree.
This deliberation takes place after the owner or owners have given their consent, both concerning the perimeter of the reserve and the protective measures applied there. In the absence of agreement, it is pronounced by a Conseil d'Etat decree.
The management methods for nature reserves and the inspection of requirements are defined by the Corsican Assembly, after State agreement when the classification decision has been made by the aforementioned or on its request.
Article L332-3 (Act no. 2002-276 of 27 February 2002 Article 109 II b Official Journal of 28 February 2002)
I. - The classification act may subject a national nature reserve to a specific regime, and where appropriate, forbid any action inside the reserve liable to damage the natural development of fauna and flora, and more generally, alter the nature of the said reserve, especially hunting and fishing, farming, forestry, pastoral, industrial, mining and commercial activities, the performance of public and private works, the extraction of concessible or non-concessible materials, the use of water, public traffic by whatever means, stray domestic animals, and flying over the reserve.
II. - The classification act for a regional nature reserve or a nature reserve from the Corsican territorial authority may subject the reserve to a specific regime, and where appropriate, forbid: farming, pastoral and forestry activities, the performance of work, construction and installation, the movement and parking of people, animals and vehicles, the disposal or dumping of material, remnants and waste of whatever nature whatsoever which may undermine the natural environment, actions which may undermine the integrity of non-domestic animals or uncultivated plants in the reserve and the removal of the said animals or plants from the reserve.
III. - The classification act takes into account the advantage of maintaining existing traditional activities on condition that they are compatible with the interests defined in Article L. 332-1.
Article L332-4 (Act no. 2002-276 of 27 February 2002 Article 109 II c 1 Official Journal of 28 February 2002)
The classification act is published by the competent administrative authority, in the form and manner stipulated in the laws and regulations concerning land registration. This publication shall not result in revenue for the State.
This act is sent to the mayors with a view to transcribing it upon revision of the land register. The owners and holders of real rights are notified.
Article L332-5 When classification involves limitations which may change the state or former use of sites, causing undoubted,
direct, material prejudice, it entitles the owners and holders of real rights or their claimants to compensation. Under these circumstances, the claim must be made within a period of six months from notification of the
classification decision. In the absence of an out-of-court settlement, compensation is determined by the juge de l'expropriation.
Article L332-6 (Act no. 2002-92 of 22 January 2002 Article 24 IV Official Journal of 23 January 2002) (Act no. 2002-276 of 27 February 2002 Article 109 II c 2, d Official Journal of 28 February 2002)
As of the day when the competent administrative authority notifies the owner concerned of its intention to form a nature reserve, no modifications may be made to the condition of the property or its appearance for a period of fifteen months, unless special authorisation is granted by the competent administrative authority, subject to the use of rural funding in accordance with previous practices. This time limit may be renewed once by a decision from the president of
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ENVIRONMENTAL CODE the regional council or a prefectural ruling, depending on the case, on condition that the first consultations or public enquiry have begun. Once notification has been given in Corsica, by the president of the executive council, the time limit may be renewed under the same conditions by a decision from the executive council.
Article L332-7 (Act no. 2002-276 of 27 February 2002 Article 109 II c 2 Official Journal of 28 February 2002)
Goods resulting from classification follow the listed territory, whoever becomes the owner. Whosoever alienates, rents or assigns territory classified as a nature reserve, is obliged to inform the buyer, tenant
or concessionary of the existence of the classification. The competent administrative authority must be notified of the alienation of a building located in a nature reserve
within fifteen days by the person who agreed to the alienation.
Article L332-8 (Act no. 2002-276 of 27 February 2002 Article 109 II e Official Journal of 28 February 2002)
The management of nature reserves may be entrusted, by way of an agreement, to public establishments, public interest groups or non-profit-making associations governed by the law of 01 July 1901 with the main statutory purpose of protecting natural heritage, foundations, classified landowners or territorial authorities or groups thereof.
Subsection 2 Modifications to the state or appearance of a nature reserve Article L332-9
Article L332-9 (Act no. 2002-276 of 27 February 2002 Article 109 II g Official Journal of 28 February 2002)
The state or appearance of territories classified as nature reserves may not be destroyed or modified, unless special authorisation has been granted by the regional council for regional nature reserves or the State representative for national nature reserves. Authorisation is the responsibility of the Corsican Assembly in Corsica if the territorial authority made the decision for classification.
A Conseil d'Etat decree determines the modes of implementation of this authorisation, especially the prior consultation of competent organisations.
Subsection 3 Downgrading Article L332-10
Article L332-10 (Act no. 2002-92 of 22 January 2002 Article 24 VI Official Journal of 23 January 2002) (Act no. 2002-276 of 27 February 2002 Article 109 II h Official Journal of 28 February 2002)
Full or partial downgrading of a territory classified as a nature reserve is pronounced after a public enquiry, by a Conseil d'Etat decree when it concerns a national nature reserve, or by regional council deliberation when it concerns a regional nature reserve.
It is subject to the measures provided for in Article L. 332-4. The Corsican Assembly may, after a public enquiry, decide on the full or partial downgrading of a territory for which
it pronounced the nature reserve classification, with the exception of plots of land classified as nature reserves at the request of the State representative. The downgrading decision is subject to the measures provided for in Article L. 332-4.
SECTION II Non-classified nature reserves Article L332-11
Article L332-11 (Act no. 2002-92 of 22 January 2002 Article 24 VII Official Journal of 23 January 2002) (Act no. 2002-276 of 27 February 2002 Article 109 II I Official Journal of 28 February 2002)
Non-classified nature reserves, registered on the date Act no. 2002-276 of 27 February 2002 concerning neighbourhood democracy came into force, become regional nature reserves, or in Corsica, Corsican territorial authority nature reserves. However, for a period of one year from the said date, the owners concerned may ask for their registration to be withdrawn.
SECTION III Common provisions Articles L332-13 to
L332-19-1
Subsection 1 Protection of nature reserves Articles L332-13 to
L332-15
Article L332-13 (Act no. 2002-92 of 22 January 2002 Article 24 VIII Official Journal of 23 January 2002) (Act no. 2002-276 of 27 February 2002 Article 109 II k Official Journal of 28 February 2002)
No one may acquire by statute of limitations on a nature reserve, rights which may change its character or modify the appearance of the site.
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ENVIRONMENTAL CODE An easement may only be established by an agreement in a nature reserve with the consent of the State
representative or the regional council when it made the decision for classification. The required consent is given by the Corsican Assembly in Corsica, if it made the decision for classification.
Article L332-14 Advertising is forbidden in nature reserves.
Article L332-15 Within the territory of a nature reserve, it is compulsory to bury electrical or telephone networks or, for power lines
carrying under 19 000 volts, to use twisted cable techniques on house facades, when creating new electricity lines or new telephone networks.
When technical requirements or topographical constraints make burial impossible, or when the impact of burial is judged higher than the installation of an overhead line, an exception may be granted to this ban by a joint ruling from the minister for energy and telecommunications and the minister of the environment.
Subsection 2 Perimeter of protection Articles L332-16 to
L332-18
Article L332-16 (Act no. 2002-276 of 27 February 2002 Article 109 II l Official Journal of 28 February 2002)
The regional council, for regional nature reserves, or the State representative, for national nature reserves, may introduce protected area boundaries around the said reserves. In Corsica, the decision is the remit of the Corsican Assembly when the territorial authority made the decision for classification.
These boundaries are created after a public inquiry into the proposal, or after the agreement of the municipal councils.
Article L332-17 Within the protected area boundaries, limitations may subject any action liable to alter the character of or damage
the nature reserve to a special scheme or ban. The limitations concern all or part of the actions listed in Article L. 332-3.
Article L332-18 The provisions of Articles L. 332-7 and L. 332-8 apply to protected area boundaries.
Subsection 3 Miscellaneous provisions Articles L332-19 to
L332-19-1
Article L332-19 Nature reserves created in application of Article 8 a of the law of 02 May 1930 are subject to the provisions of the
present Chapter.
Article L332-19-1 (Act no. 2002-92 of 22 January 2002 Article 24 IX Official Journal of 23 January 2002) (Act no. 2002-276 of 27 February 2002 Article 109 II m Official Journal of 28 February 2002)
In Articles L. 332-4, L. 332-6 and L. 332-7, the words: "competent administrative authority" refer to the president of the executive council when the Corsican territorial authority has made the decision for classification.
SECTION IV Criminal provisions Articles L332-20 to
L332-27
Subsection 1 Investigation of offences and proceedings Articles L332-20 to
L332-24
Article L332-20 (Act no. 2003-239 of 18 March 2003 Article 91 I Official Journal of 19 March 2003)
In addition to the police officers listed in Articles 16, 20 and 21 of the Code de procédure pénale, the following are authorised to record infringements of the provisions of Articles L. 332-3, L. 332-6, L. 332-7, L. 332-9, L. 332-11, L. 332-12, L. 332-17 and L. 332-18:
1° Commissioned customs officers; 2° Officers commissioned for this purpose by the administrative authority, sworn at the Tribunal de Grande Instance
attached to their place of residence, who can furthermore be commissioned to report hunting and fishing infringements committed in nature reserves;
3° Officers from the State and the National Forestry Office commissioned to record infringements pertaining to forestry, hunting, fishing, health inspection, and animal or plant protection throughout the areas for which they have been sworn;
4° Sworn, commissioned national park rangers from the National Hunting and Wildlife Office and the Higher Fishing
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ENVIRONMENTAL CODE Council;
4° a Rangers; 5° When protective measures concern the public maritime domain or territorial waters, the officers authorised by the
decree of 09 January 1852 relating to saltwater fishing to record infringements of the regulations pertaining to saltwater fishing, and police civil servants in charge of the public maritime domain and territorial waters.
NB - Law 2003-329 Article 131: Articles 77, ... 86 to 89, 91 ... apply to Mayotte.
Article L332-21 The official reports issued by the civil servants and officers designated in Article L. 332-20 are used as evidence
until proof of the contrary. They are given or sent directly to the Director of Public Prosecution. This handing over or dispatch takes place five clear days after the date on which the infringement was recorded. Failure to do so renders the official report null and void.
The rules for criminal procedure decreed by Articles 17 to 21 a of the decree of 09 January 1852 relating to saltwater fishing, apply in the event of infringements committed in the public maritime domain or territorial waters.
Article L332-22 (Order no. 2004-178 of 20 February 2004 Article 3 Official Journal of 24 February 2004)
I. - Nature reserve rangers are authorised to record infringements of the regulations pertaining to the protection of the maritime area in the reserves.
II. - They are also authorised to look for and record in this maritime area: 1° Infringements of shipping policing rules as defined in Article 63 of the Code disciplinaire et pénal de la marine
marchande, as far as the waterway and harbour police are concerned, and Article R. 1 of the same code; 2° The infringements defined in Articles L. 218-10 to L. 218-19 and in Article L. 218-73 of the present code; 3° Infringements of signposting police defined in Articles L. 331-1, L. 331-2 and R. 331-1 of the Code des ports
maritimes; 4° The infringements defined in Articles L. 532-3, L.532-4, L. 532-7and L. 532-8 of the Code du Patrimoine; 5° The infringements defined in Articles 2, 5 and 6 of the decree of 9 January 1852 concerning salt-water fishing. III. - As officers in charge of fishing policing, they are able to carry out controls of the prerogatives provided for in
Article 14 of the aforementioned decree of 9 January 1852. IV. - They are commissioned by the administrative authority for this purpose and sworn by the Tribunal de Grande
Instance attached to their place of residence. V. - Official reports issued by these officers have probative force until proven otherwise. They are sent to the
administrative or legal authorities according to the procedures provided for the reported infringements. NB: the 3rd paragraph of article 7 of Act no. 89-874 is repealed by 14 of article 7 of Order no. 2004-178 of 20
February 2004 relating to the enacted part of the Code du Patrimoine, subject to the provisions of 7 of its article 8. The repeal will only take effect as of the publication of the regulatory provisions of the Code du Patrimoine.
Article L332-23 The civil servants and officers designated in Article L. 332-20 are authorised, in the performance of their duties, to
visit nature reserves and their protective boundaries with a view to ensuring the respect of the rules to which they are subject and to observe any infringements.
Preventing these civil servants or officers from performing their duties, by refusing them entry to a nature reserve, is punishable by the penalties provided for in Article L. 332-25, without prejudice, where appropriate, to the penalties provided for in Articles 433-6 and after of the Code pénal.
Article L332-24 Infringements of the nature reserve regulations mentioned in Article 529 of the Code de Procédure Pénale may give
rise to the set fine procedure.
Subsection 2 Sanctions Articles L332-25 to
L332-27
Article L332-25 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
Infringements of the provisions of Articles L. 332-6, L. 332-7, L. 332-9, L. 332-12, L. 332-17 and L. 332-18 are punishable by six months of imprisonment and a 9 000 euro fine.
Article L332-26 The officers in charge of recording the infringements mentioned in Articles L. 332-3 and L. 332-25 may confiscate
the subject of the infringement, and the instruments and vehicles used to commit the infringement. The costs for transporting, maintaining and keeping the confiscated objects are borne by the accused. The
judgement for conviction may pronounce the confiscation of the subject of the infringement and the instruments and vehicles used to commit the infringement.
Article L332-27 (Act no. 2002-276 of 27 February 2002 Article 109 II n Official Journal of 28 February 2002)
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ENVIRONMENTAL CODE In the event of an infringement of the provisions of Articles L. 332-6, L. 332-9, L. 332-17 and L. 332-18 or the
limitations of the classification act as provided for in Article L. 332-3 of the present code, the provisions and sanctions enacted in Articles L. 480-2, L. 480-3, L. 480-5 to L. 480-9 of the Code de l'urbanisme and in Article L. 341-20 of the present code apply to territories within a nature reserve, with the Minister for the protection of nature replacing the Minister for town planning.
For application of paragraph 1 of Article L. 480-2 of the Code de l'urbanisme, the public ministry may only act at the request of the mayor, the competent civil servant or
an environmental protection agency approved in accordance with Article L. 141-1 of the present code. For application of Article L. 480-5 of the Code de l'urbanisme, the court shall either give a ruling on the backfitting of
the properties with the recommendations set out by the Minister of the environment, the President of the regional council or the President of the Corsican executive council, according to whether it concerns a national nature reserve, a regional nature reserve or a nature reserve classified by the Corsican Assembly, or the return to their former state.
CHAPTER III Regional parks Articles L333-1 to
L333-4
Article L333-1 (Act no. 2003-591 of 02 July 2003 Article 31 III 9° Official Journal of 03 July 2003) (Act no. 2005-157 of 23 February 2005 Article 231 I Official Journal of 24 February 2005)
Regional parks participate in environmental protection policy, spatial planning, economic and social development and public training and information. They form a privileged framework for actions carried out by public authorities for the preservation of landscapes and natural and cultural heritage.
The park charter determines the guidelines for protection, improvements and development, and the measures enabling them to be implemented for the park area. It includes a detailed map, based on a heritage inventory, indicating the different park areas and their use, with a document that determines the guidelines and fundamental principles for protecting the landscape structures in the park area.
The draft constituent charter is drawn up by the region with all of the territorial authorities concerned and in consultation with the interested partners. It is submitted for a public enquiry, then approved by the local authorities concerned and adopted by a decree for the classification of the territory as a regional nature park for a maximum duration of ten years.
The regional nature park charter is revised by the regional park management organisation. When changes to the de jure or de facto circumstances do not allow the region to conduct the revision at its term, before the expiry of the classification, this classification may be prolonged by decree for a maximum duration of two years. This decree is made at the request of the region on the proposal of the management organisation without any need to proceed to the prior consultations required on the occasion of the initial classification and its renewal.
The State and territorial authorities adhering to the charter apply the guidelines and measures thereof in the practice of their competences in the park area. They consequently ensure the coherence of their actions and the means they dedicate to them. The State and the regions adhering to the charter may sign an agreement with the park management organisation to apply the State-region 5-year plan contract. The town planning documents must be compatible with the guidelines and measures of the charter.
A Conseil d'Etat decree determines the modes of application of the present Article.
Article L333-2 The regional parks located in mountainous areas are a model instrument for the protection of biological balance and
the preservation of the sites and landscapes referred to in Article 1 of Act no. 85-30 of 09 January 1985 relating to mountains. Their representation in the mountain committees, provided for in Article 7 of the same law, conveys the privileged nature of their relationships with the regions and territorial authorities in the context of spatial planning that respects the distinctive features of mountainous areas.
This representation allows them to participate in the elaboration of the specifications referred to in Article L. 145-7 of the Code de l'urbanisme, particularly as far as the means of preserving areas, landscapes and environments that are typical of the natural and cultural mountain heritage are concerned.
Article L333-3 The development and management of regional parks, created after 03 February 1995, are entrusted to a mixed
syndicate as described in Articles L. 5721-1 and according to the Code général des collectivités territoriales.
Article L333-4 (Act no. 2003-590 of 02 July 2003 Article 97 IV Official Journal of 03 July 2003)
When the boundaries of a country include communes located in a regional park, document compatibility, and the coherence and coordination of the actions carried out by the country in the common territory are ensured, in accordance with the third paragraph of IV of Article 22 of Act no. 95-115 of 04 February 1995 relating to territorial planning and development.
TITLE IV Sites Articles L341-1 to
L342-1
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ENVIRONMENTAL CODE CHAPTER I Registered and listed sites Articles L341-1 to
L341-22
SECTION I Inventory and classification Articles L341-1 to
L341-15
Article L341-1 (Act no. 2002-92 of 22 January 2002 Article 24 X Official Journal of 23 January 2002) (Order no. 2004-637 of 1 July 2004 Article 28 I Official Journal of 2 July 2004 in force on 1st July 2006)
In each département there is a list of natural monuments and sites for which the conservation or preservation presents a general interest, from an artistic, historical, scientific, legendary or picturesque point of view.
Registration on the list is pronounced by a ruling from the minister in charge of the sites, and in Corsica, by deliberation of the Corsican Assembly after the State representative's opinion. A Conseil d'Etat decree determines the procedure according to which the owners are notified of this registration or it is the subject of a publication. A publication shall only substitute notification in the event of it being impossible due to the high number of owners on the same site or natural monument, or when it is impossible for the administration to know the identity or place of residence of the owner.
Within the land included in the boundaries set by the ruling, registration entails the obligation of those concerned not to carry out any work other than that of routine operations as far as rural funds are concerned, and normal maintenance as far as buildings are concerned, without having advised the administration of their intention four months in advance.
NB: The date on which article 28 of Order 2004-637 comes into force has been modified by Order 2004-727.
Article L341-2 (Act no. 2005-157 of 23 February 2005 Article 180 Official Journal of 24 February 2005) (Order no. 2004-637 of 1 July 2004 Article 28 I Official Journal of 2 July 2004 in force on 1st July 2006) (Act no. 2005-157 of 23 February 2005 Article 180 Official Journal of 24 February 2005)
The natural monuments and sites registered or not on the list compiled by the département commission may be classified under the conditions and according to the provisions established by the present section.
When the high commission for sites, viewpoints and landscapes receives a classification application directly, the aforementioned is sent on to the département commission for examination, and when appropriate, classification proposal purposes. In the event of an emergency, the minister in charge of the sites sets the département commission a time limit for giving its opinion. Should a verdict not be given within this time limit, the minister consults the high commission and replies to the application accordingly.
In mountainous zones, the classification decision is made after consultation of the Mountains Committee concerned. NB: The date on which article 28 of Order 2004-637 comes into force has been modified by Order 2004-727.
Article L341-3 When all or part of a natural monument or a site belonging to parties other than those listed in Articles L. 341-4 and
L. 341-5 is the subject of classification, the parties involved are invited to present their observations, in accordance with a procedure determined by a Conseil d'Etat decree.
Article L341-4 A natural monument or site included in public or private State property is classified by a ruling from the minister in
charge of the sites, when the powers, duties and functions with which the natural monument or site finds itself are agreed with the minister, and with the minister in charge of the domain.
The same applies each time it is a question of classifying a lake or waterway liable to produce a permanent output of 50 kilowatts of electrical energy.
Should this not be the case, classification is pronounced by a Conseil d'Etat decree.
Article L341-5 A natural monument or site included in the public or private property of a département or commune, or belonging to
a public establishment is classified by a ruling from the minister in charge of the sites if consent has been given by the physical owner.
If this is not the case, classification is pronounced after consultation with the high commission for sites, viewpoints and landscapes, by a Conseil d'Etat decree.
Article L341-6 (Order no. 2004-637 of 1 July 2004 Article 28 I Official Journal of 2 July 2004 in force on 1st July 2006)
A natural monument or site belonging to persons other than those listed in Articles L. 341-4 and L. 341-5 is classified by a ruling from the minister in charge of the sites, by a Conseil d'Etat decree if consent has been given by the owner. The ruling determines the conditions of classification.
In the absence of the owner's consent, classification is pronounced after the opinion of the high commission by a Conseil d'Etat decree. Classification may give the right to compensation for the owner if it entails a change in the state or use of the premises and a direct, undoubted, material prejudice.
The claim must be made within a period of six months from the date of formal notice informing the owner to change the state or use of the property in accordance with the specific requirements of the classification decision. In the
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ENVIRONMENTAL CODE absence of an out-of-court settlement, compensation is determined by the juge de l'expropriation.
Should the government decide not to give automatic classification under the conditions thus set forth, it may, at any time during the procedure, at the latest within three months from notification of the court decision, repeal the classification decree.
The classification of a lake or waterway able to produce permanent electrical energy of at least 50 kilowatts may only be pronounced after the approval of the ministers concerned. This approval must be set out within a period of three months, after which it may be disregarded.
In the event of approval by the ministers concerned, the classification may be pronounced by a ruling from the minister in charge of the sites. Should this not be the case, it is pronounced by a Conseil d'Etat decree.
NB: The date on which article 28 of Order 2004-637 comes into force has been modified by Order 2004-727.
Article L341-7 From the day on which the authority in charge of the sites notifies the owner of a natural monument or site of its
intention to proceed with classification, no modifications may be made to the condition of the property or its appearance for a period of twelve months, unless special authorisation is granted, and subject to the everyday use of rural funding and normal maintenance of the buildings.
When the identity or place of residence of the owner is unknown, notifications are legitimately made to the mayor, who shall then ensure they are displayed, and where appropriate, the occupant of the premises.
Article L341-8 All rulings and decrees pronouncing classification are published, by the authorities in charge of the sites, at the
mortgage registry for the location of the listed building. This publication, which shall not give rise to the collection of income for the Treasury, is carried out in accordance
with the proprieties and methods stipulated in the laws and regulations concerning land registration.
Article L341-9 Effects resulting from classification follow the natural monument or listed territory, whoever becomes the owner. Whosoever alienates a natural monument or a classified site, is obliged to inform the buyer of the existence of this
classification. The minister in charge of the sites must be notified of the alienation of a natural monument or classified site within
fifteen days, by the person who agreed to the alienation.
Article L341-10 The state or appearance of natural monuments or classified sites may not be destroyed or modified, unless special authorisation has been granted.
Article L341-11 On the area of a classified site in accordance with the present Chapter, it is compulsory to bury electrical or
telephone networks or, for power lines carrying under 19 000 volts, to use twisted cable techniques on house facades, when creating new electricity lines or new telephone networks.
When technical requirements or topographical constraints make burial impossible, or when the impact of burial is judged higher than the installation of an overhead line, an exception may be granted to this ban by a joint ruling from the minister for energy and telecommunications and the minister of the environment.
Article L341-12 From the day on which the authority in charge of the sites notifies the owner of a natural monument or
non-classified site its intention to pursue expropriation, all of the effects of the classification shall apply automatically to the natural monument or site in question. They shall cease to apply should the declaration of public utility not be made within twelve months of this notification. Once public utility has been declared, the property may be classified without any other formality by a ruling from the minister in charge of the sites.
Article L341-13 (Order no. 2004-637 of 1 July 2004 Article 28 I Official Journal of 2 July 2004 in force on 1st July 2006)
Full or partial downgrading of a classified monument or site is pronounced after the opinion of the sites high commission is given, by a Conseil d'Etat decree. Those concerned are notified of the downgrading, which is published at the mortgage registry of the property's location, under the same conditions as classification.
On assent of the Conseil d'Etat, a downgrading decree determines whether there should be a refund of the compensation provided for in Article L. 341-6.
NB: The date on which article 28 of Order 2004-637 comes into force has been modified by Order 2004-727.
Article L341-14 No natural monument, classified site or site proposed for classification may be involved in an enquiry for
expropriation for reasons of public utility until the minister in charge of the sites has been called to present his or her observations.
No one may acquire by statute of limitations on a natural monument or a classified site, rights which may change its character or modify the appearance of the property.
An easement may only be established on a natural monument or classified site by an agreement with the minister in charge of the sites.
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ENVIRONMENTAL CODE Article L341-15
The list of classified natural monuments and sites is kept up to date. During the first quarter of each year, the nomenclature of natural monuments and sites that have been classified or protected during the course of the previous year is published in the Official Journal.
SECTION II Organisations Articles L341-16 to
L341-18
Article L341-16 (Act no. 2003-591 of 02 July 2003 Article 31 III 12° Official Journal of 03 July 2003) (Order no. 2004-637 of 1 July 2004 Article 28 I Official Journal of 2 July 2004 in force on 1st July 2006) (Act no. 2005-157 of 23 February 2005 Article 190 V, Article 235 XII Official Journal of 24 February 2005)
A competent département-level commission for nature, landscapes and sites holds a sitting in each département. This commission is presided by the State representative in the département. When it acts in the cases provided for
in articles L. 111-1-4, L. 122-2, L. 145-3, L. 145-5, L. 145-11, L. 146-4, L. 146-6, L. 146-6-1, L. 146-7 and L. 156-2 of the Code de l'Urbanisme, it sits in a formation comprising State representatives, elected representatives of territorial authorities and public inter-commune cooperation establishments, and persons qualified in matters pertaining to the natural sciences or site protection or the living environment.
In Corsica, the powers, duties and functions devolved to the commission of sites, viewpoints and landscapes are exercised by the Corsican sites council provided for in Article L. 4421-4 of the Code Général des Collectivités Territoriales.
NB: The date on which article 28 of Order 2004-637 comes into force has been modified by Order 2004-727.
Article L341-17 A high commission of sites, viewpoints and landscapes works with the minister in charge of the sites. This commission, presided by the minister in charge of the sites, is comprised of representatives of the ministers
concerned, members of parliament and senators designated by each of the assemblies, and persons qualified in matters pertaining to site protection, the living environment and natural sciences, designated by the minister in charge of the sites.
Article L341-18 A Conseil d'Etat decree defines the conditions of application for the present Chapter, especially the composition,
and methods of designation and operation for the commissions provided for in Articles L. 341-16 and L. 341-17.
SECTION III Criminal provisions Articles L341-19 to
L341-22
Article L341-19 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Act no. 2003-591 of 2 July 2003 Article 31 III 10° Official Journal of 3 July 2003) (Order no. 2004-178 of 20 February 2004 Article 6 III Official Journal of 24 February 2004) (Order no. 2005-1527 of 8 December 2005 Article 34 I Official Journal of 9 December 2005 in force on 1st July 2007)
I. - The following are punishable by a 9 000 euro fine: 1° Proceeding with work on a natural monument or classified site without notifying the authorities under the
conditions provided for in Article L. 341-1, paragraph 4; 2° Alienating a natural monument or classified site without informing the buyer of its classification or without
informing the authorities of this alienation in accordance with the conditions provided for in Article L. 341-9; 3° Introducing an easement to a natural monument or classified site without the approval of the authorities in
accordance with the conditions provided for in Article L. 341-14. II. - The following are punishable by the penalties provided for in Article L. 480-4 of the Code de l'Urbanisme: 1° Modifying a natural monument or site pending classification in violation of the provisions of Article L. 341-7; 2° Destroying or changing the state or appearance of a natural monument or classified site without the authorisation
provided for in Article L. 341-10; 3° Non conformity with the requirements set by a decree for the creation of a protection area in application of Article
19 of the law of 02 May 1930 which aims to reorganise the protection of natural monuments and sites of an artistic, historical, scientific, legendary or picturesque nature, and continue to produce the effects in application of Article L. 642-6 of the Code du Patrimoine.
III. - The provisions of Articles L. 480-1, L. 480-2, L. 480-3 and L. 480-5 to L. 480-9 of the Code de l'Urbanisme are applicable to the infringements in paragraph 4 of Article L. 341-1 of the present code and the provisions referred to in II, subject to the following conditions:
1° Infringements are recorded by the civil services and officers commissioned for the purpose by the minister in charge of the sites and by the civil servants and officers commissioned and sworn to record infringements in matters concerning forestry, hunting and fishing;
2° For the application of Article L. 480-5 of the Code de l'Urbanisme, the court gives a ruling either on the backfitting
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ENVIRONMENTAL CODE of the premises in accordance with the recommendations set out by the minister in charge of the sites, or on the restoration to their former state;
3° The right to visit provided for in Article L. 461-1 of the Code de l'Urbanisme is open to representatives of the minister in charge of the sites; Article L. 480-12 of the same code shall apply.
Article L341-20 The destruction, mutilation or damaging of a natural monument or registered or classified site is punishable by the
penalties provided for in Article 322-2 of the Code pénal, without prejudice to damages.
Article L341-21 The officers in charge of reporting the infringements mentioned in Articles L. 341-19 and L. 341-20 may confiscate
the subject of the infringement and the instruments and vehicles used to commit the infringement. The costs incurred for transporting, maintaining and keeping the confiscated objected are borne by the defendant. The judgement of conviction may pronounce the confiscation of the subject of the infringement and the instruments
and vehicles used to commit the infringement.
Article L341-22 The provisions of the present Chapter apply to the natural monuments and sites legally classified before 02 May
1930 in accordance with the provisions of the law of 21 April 1906 organising the protection of sites and natural monuments of an artistic nature.
CHAPTER II Other protected sites Article L342-1
Article L342-1 Should it be justified due to a specific scientific interest or the necessity of preserving mineralogical heritage, it is
forbidden to destroy or alter the sites of which the list is determined by a ruling by the minister in charge of nature protection, given their importance for understanding the history of the earth and the use of natural resources by man. Access to and removal of any mineral object may be subject to regulations or, when appropriate, forbidden by the administrative authority.
The provisions of Chapter V of Title I of Book IV of the present code apply.
TITLE V Landscapes Articles L350-1 to
L350-2
Article L350-1 I. - On territories of remarkable landscape interest, defined with the territorial authorities concerned, when the said
territories are not the subject of territorial planning guidelines made in application of Article L. 111-1-1 of the Code de l'urbanisme, the State may enforce the directives for the protection and improvement of landscapes.
II. - The aforementioned directives determine the guidelines and fundamental principles for the protection of landscape structures which apply in the said territories. They are elaborated on the initiative of the State or territorial authorities. They are subject to consultation with all of the territorial authorities concerned and with the environmental protection agencies approved in accordance with the Title of Article L. 141-1 and the professional organisations concerned. They are approved in a Conseil d'Etat decree.
III. - The master development and town planning scheme, area schemes and land-use maps or any other town planning documents in lieu thereof must be compatible with the guidelines for the protection and improvement of landscapes.
IV. - Their provisions are opposable to authorisation requests for site clearance and land use: 1° In the absence of a land-use map opposable to a third party or any town planning documents in lieu thereof; 2° When a land-use map or any other town-planning document in lieu thereof is incompatible with their provisions. V. - A Conseil d'Etat decree determines the conditions for application of the present Article.
Article L350-2 (Act no. 2003-591 of 02 July 2003 Article 31 III 11° Official Journal of 03 July 2003) (Order no. 2004-178 of 20 February 2004 Article 6 II Official Journal of 24 February 2004) (Act no. 2004-1343 of 9 December 2004 Article 78 XIV e 2 Official Journal of 10 December 2004)
The provisions pertaining to the protection areas for architectural, urban and landscape heritage are set forth in Articles L. 642-1 and L. 642-2 of the Code du Patrimoine, reproduced hereunder:
"Art. L. 642-1 - On the proposal or after the approval of the municipal council of the communes concerned, the protection areas for architectural, urban and landscape heritage may be introduced around historical monuments and in the districts, sites and areas to be protected or improved for reasons of an attractive, historical or cultural nature.
"Art. L-642-2 - Specific recommendations in terms of architecture and landscape are introduced within these areas of parts of the areas for the work mentioned in Article L. 642-3.
"After a public enquiry, the approval of the regional commission for heritage and sites established by Article L. 612-1, and the agreement of the municipal council of the commune concerned, the protection area is created by a decision of the administrative authority.
"The competent minister may evoke any protection area project.
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ENVIRONMENTAL CODE "The provisions of the protection area are annexed to the local urban development plan under the conditions
provided for in Article L. 126-1 of the Code de l'Urbanisme."
TITLE VI Access to nature Articles L361-1 to
L364-1
CHAPTER I Walking routes Articles L361-1 to
L361-2
Article L361-1 (Act no. 2005-157 of 23 February 2005 Article 197 Official Journal of 24 February 2005)
After the approval of the communes concerned, the département establishes a département plan of walking and hiking routes.
The routes which come under this plan may use existing public roads, pathways on the département's private estate and easements intended to ensure a crossing for pedestrians on the local properties of the public maritime domain in application of Article L. 160-6 of the Code de l'Urbanisme. After deliberation with the communes concerned, they may also use rural pathways and, after agreements signed with the owners concerned, use paths and tracks belonging to the State, other public bodies or private individuals. These agreements may determine the costs of maintenance and signposting to be covered by the département.
Any alienation of a rural pathway which may interrupt the continuity of a route registered on the département plan for walking and hiking routes, must include the preservation or reestablishment of this continuity via a replacement route, failure to do which leading to the alienation being null and void. Any public land planning operation must also respect this preservation or continuity.
The circulation of pedestrians on the routes and paths listed in the département plan of walking and hiking routes, or those identified for the private paths after agreements drawn up with the owners of these paths, by the communes and the approved federations of walkers, may be done freely, providing the laws and policing rules and local inhabitants' rights are respected.
The mayors, by virtue of their policing powers, may, where applicable, regulate the conditions of use of these routes.
The civil liability of the rural and forestland owners may only be engaged with respect to damage caused or suffered when pedestrians use these routes or when leisure activities are practised if these owners have committed wrongful acts.
A Conseil d'Etat decree determines the conditions of application of the present Article.
Article L361-2 The département establishes, under the same conditions as Article L. 361-1, a département plan of the motorised
routes of which the creation and maintenance remain its responsibility. The routes included in this plan must borrow roads that are classified in the public road domain of the State,
départements and communes, rural pathways and private roads open to public motor vehicle traffic, with the exception of those which are subject to a traffic ban in application of Articles L. 2213-4 and L. 2215-3 of the Code général des collectivités territoriales.
CHAPTER II Motorised traffic Articles L362-1 to
L362-8
Article L362-1 With a view to protecting natural areas, motor vehicles are forbidden outside the classified roads in the public road
domain of the State, départements and communes, rural pathways and private roads open to public motor vehicle traffic, The charter of each regional nature park includes an Article establishing the rules for motor vehicle traffic on the
roads and pathways of each commune which is a member of the park.
Article L362-2 The ban provided for in Article L. 362-1 shall not apply to vehicles used for fulfilling public service missions. Subject to the provisions of Articles L. 2213-4 and L. 2215-3 of the Code général des collectivités territoriales, the
ban shall not apply to vehicles used for professional research, operations or maintenance purposes in the natural areas and it shall not apply to owners or their claimants who drive or have vehicles driven for private purposes on land belonging to the said owners.
Article L362-3 (Order no. 2005-1527 of 8 December 2005 Article 34 II Official Journal of 9 December 2005 in force on 1st July 2007)
The opening of land for motorised sports practise is subject to of the authorisation provided for in Article L. 421-2 of the Code de l'Urbanisme.
Motorised sports events and competitions are authorised in accordance with the conditions defined by a Conseil d'Etat decree, by the Préfet.
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ENVIRONMENTAL CODE The use, for leisure purposes, of motorised vehicles for transportation on snow is forbidden, except for open land,
under the conditions provided for in the first paragraph.
Article L362-4 All forms of direct or indirect publicity showing a vehicle in a situation of infringement of the provisions of the present
Chapter are forbidden.
Article L362-5 In addition to police officers, the following are authorised to report infringements of the provisions of the first
paragraph of Article L. 362-1, the last paragraph of Article L. 362-3 and the provisions made in application of Articles L. 2213-4 and L. 2215-3 of the Code général des collectivités territoriales:
a) The officers listed in Article 22 of the Code de procédure pénale; b) Civil servants and officers commissioned and sworn for nature protection by the minister of the environment; c) Officers commissioned and sworn by the National Forestry Office, the National Hunting and Wildlife Office, and
the Higher Fishing and National Parks Council.
Article L362-6 The official reports issued by the civil servants and officers mentioned in Article L. 362-5 are used as evidence until
proof of the contrary. They are given or sent directly to the Director of Public Prosecutions. This handing over or dispatch takes place five clear days after the date on which the infringement was recorded, failing which they are null and void.
Article L362-7 The provisions of Articles L. 25 to L. 26 of the Code de la Route apply to vehicles committing an infringement of the
provisions of the present Chapter and the rulings used for its application, according to the modes of implementation determined by a Conseil d'Etat decree.
The officers mentioned in Article L. 362-5 are authorised to implement the provisions of Article L. 25-1 of the Code de la route.
Article L362-8 The court seized for proceedings for one of the infringements provided for in application of the present Chapter and
the rulings used for its application may pronounce that the vehicle be taken off the road for a period of at least six months and at least one year in the event of a second offence.
CHAPTER III Other methods of access Article L363-1
Article L363-1 In mountainous areas, the setting down of passengers by aircraft for leisure purposes is forbidden, except for
airfields, the list of which is determined by the administrative authority.
CHAPTER IV Areas, sites and routes for nature sports Article L364-1
Article L364-1 As stipulated in Article 19 II of the modified Act no. 84-610 of 16 July 1984 concerning the organisation and
promotion of physical and sports activities, partially reproduced hereinafter: "The National French Olympic and Sports Committee has signed agreements with the managing organisations of
natural areas, subject to the respect of regulations which are specific to each area, in the aim of determining the conditions and modes of access to these sites for outdoor nature sports activities, which are compatible with the schemes of the community services for natural and rural areas on the one hand, and the sport on the other hand. "
BOOK IV Flora and fauna Articles L411-1 to
L430-1 TITLE I Protection of flora and fauna Articles L411-1 to
L415-5
CHAPTER I Conservation and monitoring of biological heritage Articles L411-1 to
L411-7
SECTION I Conservation of biological heritage Articles L411-1 to
L413-5
Article L411-1
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ENVIRONMENTAL CODE I. - When a specific scientific interest or the necessity of conserving biological heritage justifies the conservation of
non-domestic animal species or non-cultivated plant life, the following are prohibited: 1°. The destruction or poaching of eggs or nests; mutilation, destruction, capture or poaching, intentional
disturbance, the practice of taxidermy on any of these species or, whether dead or alive, their transport, peddling, use, possession, offer for sale, their sale or their purchase,
2° The destruction, cutting, mutilation, uprooting, picking or poaching of these plant species, of their flowers or any other form taken by these species during their vegetative cycle, their transport, peddling, use, offer for sale, sale or purchase, the possession of specimens taken from their natural environment,
3° The destruction, alteration or degradation of the specific environment of these animal or plant species, 4° The destruction of sites containing fossils that enable the study of the history of the living world, as well as early
human activity, and the destruction or poaching of fossils from these sites. II. - The possession prohibitions enacted in application of 1° or 2° of I do not apply to specimens held in compliance
with the law when the prohibition relating to the species in question came into force.
Article L411-2 (Act no. 2005-157 of 23 February 2005 Article 129 I Official Journal of 24 February 2005) (Act no. 2006-11 of 5 January 2006 Article 86 Official Journal of 6 January 2006)
A Conseil d'Etat decree defines the conditions under which are set: 1° The comprehensive list of non-domestic animals and non-cultivated plant species thus protected; 2° The length of the permanent or temporary prohibitions laid down in order to enable the recovery of the natural
populations in question or their habitats, as well as the protection of animal species during time periods or circumstances under which they are particularly vulnerable;
3° The area of the national territory, including the public coastal areas and the territorial waters, to which they apply;
4° The granting of an exemption to the prohibitions mentioned in 1, 2 and 3 of article L. 411-1, on the condition that there is no other satisfactory solution and that the exemption does not adversely affect the maintenance in a favourable state of conservation of the populations of species concerned in their natural area of distribution:
a) In the interest of protecting the wild fauna and flora and the conservation of natural habitats; b) To prevent large scale damage, notably to the crops, livestock, forests, fisheries, waters and other forms of
property; c) In the interest of public health and safety or for other imperative reasons of major public interest, including those
of a social or economic nature, and for reasons including primordial beneficial consequences for the environment; d) For the purposes of research and education, of restocking and reintroduction of these species and for
reproduction operations required for these purposes, including the artificial propagation of plants; e) To allow, under strictly controlled conditions, in a selective manner and within a limited extent, the taking or
holding of a limited and specified number of certain specimens; 5° The laws in force with regard to seeking out, hunting down and approaching with a view to taking photographs or
recording sound, including wildlife and game photography of any species and the areas where these laws are enforced, as well as to protected species outside of these areas;
6° The rules that must be complied with by establishments authorised to hold and breed specimens of the species listed in 1° or in 2° of I in Article L.411-1 outside of their natural habitat for the purposes of conserving and breeding these species,
7° The list of protected sites mentioned in 4° of I in Article L. 411-1, the specific protection measures in order to avoid their degradation, and the issuing of special permits to remove fossils for scientific or teaching purposes.
The list of non-domestic animal species in 1 is revised every two years.
Article L411-3 (Act no. 2005-157 of 23 February 2005 Article 128 II, Article 129 II Official Journal of 24 February 2005)
I. - In order to avoid any prejudice to natural environments, either to the uses associated with them or to wild flora and fauna, the introduction into the natural environment either voluntarily, through negligence or recklessness of the following is prohibited:
1° Any specimen of animal species that is not indigenous to the area of introduction and is not domestic, the list of which is set by a joint ruling of the Minister for the protection of nature and either the Minister for agriculture or, when marine species are concerned, the Minister for maritime fishing;
2° Any specimen of plant species that is not indigenous to the area of introduction and is not cultivated, the list of which is set by a joint ruling of the Minister for the protection of nature and either the Minister for agriculture or, when marine species are concerned, the Minister for maritime fishing;
3° Any specimen of animal or plant species designated by the administrative authority. II. - Nevertheless, the introduction of specimens of such species into the natural environment may be authorised by
the administrative authority for agricultural, fish farming or forestry purposes or for wider public interest aims, and once the consequences of this introduction have been assessed.
III. - As soon as the presence in the natural environment of one of the species described in I is discovered, the administrative authority can proceed or allow others to proceed with the capture, removal, captivity or destruction of the introduced species. The provisions of II of article L. 411-5 apply to this type of intervention.
IV. - When a person is found guilty of violating the provisions of this Article, the court may rule that any costs incurred by the necessary capture, removal, upkeep or destruction are to be borne by this person.
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ENVIRONMENTAL CODE IV bis. - When the requirements of the protection of the biological heritage, natural environments and associated
uses justify the prevention of their circulation, it is forbidden to transport, peddle, use, put on sale, sell or purchase the animal or plant species the list of which is set by joint rulings of the Minister for the protection of nature and either the Minister for agriculture or, when marine species are concerned, the Minister for maritime fishing;
V - A Conseil d'Etat decree lays down the conditions under which this Article is applied.
Article L411-4 The prohibition measures covered in Article L.411-3 are, whenever they concern species of interest to agricultural or
forestry production, taken jointly by the Ministries responsible for agriculture, forestry and the environment.
Article L411-5 (Act n° 2002-92 of 22 January 2002 Article 24 XI Official Journal of 23 January 2002) (Act n° 2002-276 of 27 February 2002 Article 109 III Official Journal of 28 February 2002)
1. - The natural heritage inventory is undertaken for the entire national mainland, river and marine territory. By natural heritage inventory is meant the inventory of ecological, fauna, floral, geological, mineralogical and paleontological resources.
The State ensures its design, undertaking and assessment. The regions can be involved in the compiling of this inventory within the framework of their competencies. In addition, the territorial authorities can contribute to the knowledge of the natural heritage by compiling local inventories.
The Préfet for the region, the Préfets of the Départements and the other territorial authorities concerned are informed of these projects.
These inventories are compiled under the scientific aegis of the National Natural History Museum. When drawing up a plan, programme or project, the Préfet will inform the commune or the competent public
inter-commune co-operation body of all the data held in these inventories that might be useful in this case. II. - The provisions of the law of 29 December 1892 on damage caused to private property by the execution of
public works also apply to the execution of operations necessary to compiling these inventories. These provisions also apply to the knowledge of the soil and the vegetation and to any other type of ecological information on the areas on which inventories take place.
III. - Is set up in every region, a regional scientific council dealing with the natural heritage. This council is made up of designated specialists, selected for their scientific knowledge, especially from universities, research bodies, scholarly bodies and regional museums. It covers all life and earth sciences dealing with land, river and sea environments.
Its members are named by decree from the Préfet following the opinion of the chairman of the regional council. The members will then elect a chairman. It can be called upon for advice by the regional Préfet or by the chairman of the regional council on any question
relating to the inventory and the conservation of the natural heritage. A Conseil d'Etat decree defines its composition, its fields of intervention and specifies the conditions under which it
can be called upon.
Article L411-6 Every three years the Government submits a report on actions undertaken to apply directive 79/409/CEE of the
Council of 2 April 1979, on the conservation of wild birds and the waivers granted on the basis of Article 9 of the said directive.
Article L413-4 (Act no. 2005-157 of 23 February 2005 Article 167 I Official Journal of 24 February 2005)
1. - The following are subject to monitoring from the administrative authority when they hold non-domestic animal species:
1° The establishments defined in Article L. 413-3; 2° Scientific establishments; 3° Teaching establishments; 4° Establishments and institutes specialising in biomedical research, in biological control, and in organic
productions; 5° The professional hunting establishments of a commercial nature described in article L. 424-3. II. - A Conseil d'Etat decree sets out the methods by which this Article is applied.
Article L413-5 (Act no. 2005-157 of 23 February 2005 Article 158 I Official Journal of 24 February 2005)
Regardless of the legal proceedings that can be instigated under the terms of this Article, administrative measures that could lead to the closure of the establishment may be prescribed by the administrative authority.
A Conseil d'Etat decree sets out the methods by which this Article is applied.
SECTION II Biological monitoring of the territory Article L411-7
Article L411-7 Provisions relating to the biological monitoring of the territory are set out in the Code rural (Book II, Title V, Chapter
I).
CHAPTER II
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ENVIRONMENTAL CODE Activities subject to authorisation Article L412-1
Article L412-1 The production, possession, transfer whether upon a fee or free of charge, use, transport, introduction from any
source whatsoever, import under any customs regimes, export or re-export of all or part of non-domestic animal species and their products as well as non cultivated plant species and their seed or part of the plants, the list of which is set out by joint orders issued by the Minister of the Environment and, if necessary, by the competent minister(s), if requested by them, must be subjected to authorisation issued under the terms of and according to the rules set by a Conseil d'Etat decree.
CHAPTER III Establishments holding non-domestic animal species Articles L413-1 to
L413-5
Article L413-1 The provisions of this Chapter do not apply to sea fishing or shellfish farming products intended for consumption, or
to fishing establishments and the institutes responsible for monitoring them.
Article L413-2 The managers of breeding, selling, hiring establishments or establishments of transit for non-domestic animal
species, as well as the establishments for the purpose of exhibiting live specimens of local or foreign wildlife to the public, must hold a certificate proving that they are able to care for these animals.
The provisions of this Article also apply to establishments that existed on the 14 July 1976 within the time periods and methods set by a Conseil d'Etat decree.
Article L413-3 Without prejudice to the existing provisions relating to scheduled establishments for the protection of the
environment, the opening of breeding, selling, hiring establishments or establishments of transit for non-domestic animal species, as well as the opening of establishments for the purpose of exhibiting live specimens of local and foreign wildlife to the public, must be subject to a permit issued under the terms of and according to the methods set by a Conseil d'Etat decree.
The provisions of this Article also apply to establishments that existed on the 14 July 1976 within the time periods and methods set by a Conseil d'Etat decree.
Article L413-4 1. - The following are subject to monitoring from the administrative authority when they hold non-domestic animal
species: 1° The establishments defined in Article L. 413-3, 2° Scientific establishments, 3° Teaching establishments, 4° Establishments and institutes specialising in biomedical research, in biological control, and in organic
productions, 5° Breeding establishments, II. - A Conseil d'Etat decree sets out the methods by which this Article is applied.
Article L413-5 Regardless of the legal proceedings that can be instigated under the terms of this Article, administrative measures
that could lead to the closure of the establishment may be prescribed by the Minister of the Environment. A Conseil d'Etat decree sets out the methods by which this Article is applied.
CHAPTER IV Conservation of natural habitats and wild flora and fauna Articles L414-1 to
L414-8
SECTION I Natura 2000 Sites Articles L414-1 to
L414-7
Article L414-1 (Order no. 2001-321 of 11 April 2001 Article 8 Official Journal 14 April 2001) (Act no. 2005-157 of 23 February 2005 Article 140, Article 141, Article 142 Official Journal of 24 February 2005)
1. - Special conservation areas are sea and land sites to be protected containing: - either natural habitats under threat of extinction or reduced to a very small scale, or offering outstanding examples
of specific Alpine, Atlantic, Continental or Mediterranean characteristics; - or habitats that shelter rare or vulnerable wild flora or fauna or wild flora or fauna under threat of extinction; - or species of flora or wildlife considered worthy of specific attention due to the special nature of their habitat or the
effects of their exploitation on their state of conservation; II. - Special protection zones are:
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ENVIRONMENTAL CODE - either sea and land sites that are particularly suitable for the survival and breeding of wild bird species appearing
on a list drawn up under the terms set by a Conseil d'Etat decree; - or sea and land sites that serve as breeding, moulting, hibernation areas or are stop-over areas on migration paths
to bird species that are not shown on the abovementioned list. III. - Before the European Commission is notified of the proposal to register a special conservation area, or before
the decision to designate a special protection zone, the proposed perimeter of the area is subjected to consultation by the decision makers in the communes and the public inter-commune co-operation bodies concerned. The administrative authority cannot deviate from the justified opinions resulting from this consultation unless there is a justified decision to do so.
Before the European Commission is notified of the proposal to register a modified perimeter of a special conservation area or before the decision to modify the perimeter of a special protection zone, the draft modified perimeter of the zone is submitted for consultation to the decision makers in the communes and the public inter-commune cooperation bodies concerned by the modification of the perimeter. The administrative authority cannot deviate from the justified opinions resulting from this consultation unless there is a justified decision to do so.
IV. - sites designated as special conservation areas and special protection areas by decision of the administrative authority, form part of the European ecological network Natura 2000, under the common appellation "Natura 2000 sites".
V. - The Natura 2000 sites are the subject of measures designed to conserve or re-establish to a state that is favourable to their long term stability the natural habitats and the flora or wildlife species populations that justified their delimitation. The Natura 2000 sites are also the subject of appropriate preventive measures to avoid the degradation of these same natural habitats and disturbances that may have a significant effect on these same species.
These measures are defined in collaboration, notably with the local authorities concerned and their groupings concerned and with representatives of the owners and operators of the land included on the site.
They take into account economic, social and cultural requirements, as well as regional and local specificities. They are adapted to the specific threats that impact on these natural habitats and species. They do not lead to a prohibition of human activities as long as they do not have significant effects in relation to the objectives listed in the previous paragraph. Fish farming, hunting or other field sports carried out under the terms of and in the areas authorised by the laws and regulations in force, do not constitute disturbing activities or assimilated activities.
The measures are taken within the framework of the contracts or charters described in Article L. 414-3 or in application of the legislative and regulatory provisions, especially those relating to national parks, nature reserves, biotopes and classified sites.
Article L414-2 (Order no. 2001-321 of 11 April 2001 Article 8 Official Journal 14 April 2001) (Act no. 2005-157 of 23 February 2005 Article 144 Official Journal of 24 February 2005)
I. - For each Natura 2000 site, a document d'objectifs (action plan) defines the broad outlines of management, the measures provided for in article L. 414-1, their implementation methods and the accompanying financial provisions.
The document d'objectifs may be drawn up and approved as of the notification to the European Commission of the proposal to register a special conservation area, or the designation of a special protection zone.
II. - For the drawing-up of the document d'objectifs and the monitoring of its implementation, a Natura 2000 steering committee is set up by the administrative authority.
The committee comprises the local authorities concerned and their groupings concerned as well as, notably, representatives of the owners and operators of the land included on the Natura 2000 site. State representatives sit on the committee in a consultative capacity.
III. - The representatives of the local authorities and their groupings concerned appoint the President of the Natura 2000 steering committee as well as the local authority or the grouping responsible for drawing up the document d'objectifs and for monitoring its implementation.
Failing these appointments, the presidency of the Natura 2000 steering committee and the drawing-up of the document d'objectifs and the coordination required for its implementation are carried out by the administrative authority.
IV. - Once drawn up, the document d'objectifs is approved by the administrative authority. If the document d'objectifs has not been submitted for its approval within two years following the set-up of the Natura 2000 steering committee, the administrative authority may take over responsibility for drawing it up.
V. - When the site is entirely included in an area of land under the responsibility of the Minister for defence, the administrative authority chairs the Natura 2000 steering committee and draws up the document d'objectifs in association with the Natura 2000 steering committee.
VI. - An agreement is concluded between the State and the local authority or the grouping appointed under the conditions provided for in III in order to define the necessary methods and means of assistance for the drawing-up of the document d'objectifs and the monitoring of its implementation.
Article L414-3 (Order no. 2001-321 of 11 April 2001 Article 8 Official Journal 14 April 2001) (Act no. 2005-157 of 23 February 2005 Article 143 Official Journal of 24 February 2005)
I. - For the application of the document d'objectifs, the holders of real and personal rights to the land included in the site can sign, with the administrative authority, contracts entitled "Natura 2000 contracts". The Natura 2000 contracts signed by farmers can take the form of contracts bearing on agricultural-environmental undertakings.
The Natura 2000 contract includes a number of undertakings that comply with the actions and measures defined by the document d'objectifs, on the conservation and, if necessary, the rehabilitation of the natural habitats and the species
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ENVIRONMENTAL CODE that justified the creation of the Natura 2000 site. It defines the type and the methods of State aid and the services to be provided in return by the beneficiary. In the event of failure to meet the commitments made, State aid must be reimbursed in ways set out by decree.
Disputes relating to the fulfilment of this contract are brought before the administrative courts. II. - The holders of rights in rem and rights in personal relating to the lands included on the site may adhere to a
Natura 2000 charter. The Natura 2000 charter includes a set of undertakings defined by the document d'objectifs and for which the document d'objectifs does not provide any financial assistance. It is annexed to the document d'objectifs.
Article L414-4 (Order no. 2001-321 of 11 April 2001 Article 8 Official Journal 14 April 2001) (Order no. 2004-489 of 3 June 2004 Article 2 Official Journal of 5 June 2004, rectification JORF 10 July 2004)
1. - Programmes or projects of building or landscaping works subject to a permit or administrative approval, which may have a significant impact on a Natura 2000 site, are subject to an assessment of their impact in relation to the site's conservation objectives. For those of these programmes which are provided for by the legislative and regulatory arrangements and which are not subject to an impact study, the evaluation is conducted according to the procedure provided for in articles L. 122-4 and following of the present Code.
General, building or landscaping works planned in Natura 2000 contracts are exempted from the assessment procedure set out in the previous paragraph.
II. - The competent authority cannot authorise or approve a programme or project mentioned in the first paragraph of I if from the assessment it appears that the work would be prejudicial to the conservation status of the site.
III. - However, when there is no other solution than the fulfilment of a programme or project that may impact the conservation status of a site, the competent authority can give its permission for reasons of overriding public interest. In this case, it will check that compensatory measures are taken to maintain the overall consistency of the Natura 2000 network. These compensatory measures are at the expense of the beneficiary of the general, building or landscaping works. The European Commission is kept informed.
IV. - When the site hosts a priority type of natural habitat or species included, because of the reinforced protection they are covered by, on lists set out under the terms of a Conseil d'Etat decree, the agreement mentioned in III can only be awarded for reasons of public health or public safety, or be of major benefit to the environment or, following the opinion of the European Commission, be for overriding public interest reasons.
Article L414-5 (Inserted by Act no. 2001-321 of 11 April 2001 Article 8 Official Journal 14 April 2001)
1 - When a programme or project of building or landscaping works, falling under the provisions of Article L. 414-4, is carried out without prior assessment, without the required agreement or without a complete understanding of the agreement signed, the competent State Authority will officially warn the interested party to immediately cease the operation and return the site to its original condition, within a time limit that it will set.
With the exception of emergency cases, the interested party is invited to present its comments prior to the official warning.
II. - If, on expiry of the time limit awarded in order to return the site to its original condition, the interested party has not complied, the administrative authority may:
1° Order that the interested party place into the hands of a public accountant a sum of money equal to the amount of the operations to be carried out, which will then be returned, as and when the prescribed measures are fulfilled. The recovery of this sum is carried out in the same way as for foreign tax and property debts. While recovering this sum, the State benefits from the same rank as that laid down in Article 1920 of the Code général des impôts,
2° To have the site returned to its original condition ex officio and at the expense of the interested party. III. - The sums seized in application of 1° of II can be used to settle the expenses incurred by the execution of the
measures covered by 2° of II.
Article L414-6 (Inserted by Act no. 2001-321 of 11 April 2001 Article 8 Official Journal 14 April 2001)
A Conseil d'Etat decree sets out the methods by which this section is applied.
Article L414-7 (Inserted by Act no. 2001-321 of 11 April 2001 Article 8 Official Journal 14 April 2001)
The provisions of this section are not applicable in the French overseas territories.
SECTION II Regional orientations for the management and conservation of the wild fauna
and its habitats Article L414-8
Article L414-8 (Inserted by Law no. 2005-157 of 23 February 2005 Article 159 I Official Journal of 24 February 2005)
In each region and in the local authority of Corsica, regional orientations for the management and conservation of the wild fauna and its habitats are drawn up with a view to promoting their sustainable management, in accordance with the principles listed in article L. 420-1 and bearing in mind the regional forestry orientations mentioned in article L. 4 of the Code forestier and the priorities of the policy orienting farm production and the development of farm structures mentioned in article L. 313-1 of the Code rural.
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ENVIRONMENTAL CODE The regional orientations for the management and conservation of the wild fauna and its habitats specify the
objectives to be reached with regard to the conservation and sustainable management of the huntable or non huntable fauna in the region and its habitats, and the coexistence of the different uses of nature. They include an evaluation of the main trends in the evolution of animal populations and their habitats, the threats due to human activities and the damage that they suffer. The département hunting management schemes described in article L. 425-1 contribute to this evaluation.
The regional orientations for the management and conservation of the wild fauna and its habitats are decided upon after assessment by the local authorities and the competent persons or entities in the domains concerned, by the Préfet of the region and, in Corsica, by the Préfet of Corsica.
CHAPTER V Criminal provisions Articles L415-1 to
L415-5
SECTION I Investigation of offences Articles L415-1 to
L415-2
Article L415-1 (Act no. 2003-239 of 18 March 2003 Article 91 II Official Journal 19 March 2003)
In addition to the officers and agents of the police listed in Articles 16, 20 and 21 of the Code de procédure pénale, the following are authorised to investigate offences against the provisions of Articles L. 411-1, L. 411-2, L. 411-3, L. 412-1 and L. 413-2 to L. 413-5:
1° Commissioned customs agents, 2° Civil servants and sworn agents commissioned for this purpose by the Minister of the Environment, and who can
be additionally commissioned to investigate offences relating to hunting and fishing in nature reserves, 3° The agents of the State and the National Forestry Office, commissioned to investigate violations relating to
forestry, hunting, fishing, sanitary inspection, the protection of animals and plants, within the boundaries for which they are sworn,
4° The sworn and commissioned agents of the national parks, those of the National Hunting and Wildlife Office and the Higher Fishing Council,
4°b The gardes champêtres (rangers), 5° When protective measures cover the public sea or inland water domain, agents empowered by the decree of 9
January 1852 on sea fishing to investigate violations against the regulations governing sea fishing, as well as those civil servants in the police force responsible for the public sea and inland water domain.
NOTE - Law 2003-329 Article 131: Articles 77, ... 86 to 89, 91 ... apply to Mayotte.
Article L415-2 The reports drawn up by the civil servants or agents described in Article L. 415-1 will have probative force unless
proven otherwise. They must be sent directly to the Procureur de la République within three days, or risk becoming null and void. The criminal proceedings rules decreed by Articles 17 to 21 Part II of the decree of 9 January 1852 apply in the
event of offences committed in the public maritime or inland water domain.
SECTION II Sanctions Articles L415-3 to
L415-5
Article L415-3 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Act no. 2003-591 of 2 July 2003 Article 31 III 13° Official Journal of 3 July 2003) (Act no. 2005-157 of 23 February 2005 Article 158 II Official Journal of 24 February 2005)
The following are subject to six months' imprisonment and a fine of 9000 euros: 1° Any act in violation of the prohibitions provided by the provisions of Article L. 411-1 and the regulations provided
in Article L. 411-2: a) Interference with the conservation of a non-domestic animal species, other than intentional disturbances; b) Interference with the conservation of non-cultivated plant species; c) Destruction of sites containing fossils that enable the study of the history of the living world as well as early
human activity, including the destruction or removal of fossils from these sites; 2° The wilful introduction into the natural environment, transport, peddling, use, putting up for sale, sale or purchase
of an animal or plant species in violation of the provisions of Article L. 411-3 or the regulations for its application; 3° Any act of producing, holding, transferring, using, transporting, introducing, importing, exporting or re-exporting
all or part of the animals or plants in violation of the provisions of Article L. 412-1 or the regulations for its application, 4° The running of a business, premises or any other establishment breeding, selling, hiring or transporting
non-domestic animal species, or a business, premises or any other establishment destined to present live specimens of
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ENVIRONMENTAL CODE local and foreign fauna to the public, without holding a certificate of competence as provided in Article L. 413-2,.
5° The opening or operation of such an establishment in violation of the provisions of article L. 413-3 or the regulations for its application.
Article L415-4 Furthermore, violations of the provisions of Article L. 411-1 are punishable by the penalties provided in Articles L.
428-9 and L. 428-11.
Article L415-5 The agents responsible for investigating the offences listed in Article L. 415-3 may confiscate the subject of the
offence as well as the instruments and vehicles used to commit the offence. The costs of transport, maintenance and storage of confiscated items are to be borne by the accused party. A guilty verdict may result in the permanent confiscation of the subject of the offence as well as the instruments and
vehicles used to commit the offence. An order to display or publish an extract of the judgement, at the expense of the guilty party, may also be given under the terms provided in Article 131-35 of the Code pénal.
TITLE II Hunting Articles L421-1 to
L420-4
Article L420-1 (Act no. 2003-698 of 30 July 2003 Article 2 Official Journal of 31 July 2003) (Act no. 2005-157 of 23 February 2005 Article 149 Official Journal of 24 February 2005)
The sustainable management of faunal heritage and its habitat is in the general public interest. Hunting, an environmental, cultural, social and economic activity, forms part of this management and thus contributes to the balance between game, the environment and human activities, ensuring a true agricultural-fishing-hunting balance.
The principle of rational thinning of sustainable natural resources is imperative to the way in which these resources are used and operated. By their action of management and regulation of species the hunting of which is authorised, and by their operations in favour of biotopes, hunters contribute to the balanced management of ecosystems. They thus participate in the development of economic and ecological activities in natural environments, notably in rural areas.
Article L420-2 The Government monitors and polices hunting in the general public interest.
Article L420-3 (Act no. 2005-157 of 23 February 2005 Article 150, Article 151, Article 154 Official Journal of 24 February 2005)
Any wilful act relating to the seeking out, pursuit of or taking of game, whether for capture or killing, constitutes a hunting activity.
The preparatory act prior to actual seeking of the game, including when it consists of the unarmed tracking of the game on the territory where hunting rights are exercised, and the act of seeking out game by a hunt auxiliary, do not constitute acts of hunting. To mercy kill a grievously wounded animal or one at bay does not constitute a hunting activity, and nor does the training of hounds without capturing game on the territory where are exercised the hunting rights of their owner during the hunting periods set by the administrative authority.
Nor does the dog handler going in search of a wounded animal, or checking the result of a shot fired at an animal, constitute a hunting activity.
Training, competitions and trials of hunting dogs and birds used for falconry, authorised by the administrative authority, do not constitute hunting activities.
The act, at the end of the hunting action, of recovering one's lost dogs from another, is not considered as an infringement.
Article L420-4 The provisions of this Title are not applicable in Guyana, with the exception of Articles L. 421-1 and L. 428-24.
CHAPTER I Organisation of hunting Articles L421-1 to
L421-19
SECTION II National Hunting and Wildlife Office Articles L421-1 to
L421-4
Subsection 1 General provisions Article L421-1
Article L421-1 (Act no. 2003-698 of 30 July 2003 Article 3 Official Journal 31 July 2003) (Act no. 2005-157 of 23 February 2005 Article 152, Article 159 II, Article 160, Article 161, Article 162 Official Journal of 24 February 2005)
1. - The National Hunting and Wildlife Office is a public establishment run by the State for administrative purposes,
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ENVIRONMENTAL CODE and is under the dual supervision of the ministries for hunting and for agriculture. Its role is to carry out studies, research and experiments concerning the conservation, restoration and management of wildlife and its habitats and the enhancement of this process by the sustainable development of hunting, as well as the development and dissemination of systems and practices of appropriate management of rural territories. It offers training in these fields. It takes part in encouraging respect for wildlife and monitoring wildlife, as well as compliance with the regulations relating to hunt policing. Its officers responsible for policing assignments provide their assistance to the Préfet in matters of public order and administrative policing, within their field of competence.
It offers the State its assistance in assessing the status of wildlife, and its expertise and technical support the assessment of wildlife and habitat management and quality control documents.
The State entrusts it with the physical organisation of the examination of hunting permits. The National Hunting and Wildlife Office can work hand-in-hand with the National Hunting Federation and with the
Département Hunting Federations on questions relating to their respective fields of action. Activities undertaken jointly lead to the drawing up of specific agreements.
II. - The Management Board of the National Hunting and Wildlife Office is made up of twenty-two members, half of whom are representatives from hunting circles. It comprises representatives from hunting federations, representatives from the most representative specialised hunting associations appointed from a list drawn up by the National Hunting Federation, representatives from the State and its public establishments which manage natural spaces and forestland, professional farming and forestry organisations, nature protection bodies, personnel from the establishment and people qualified in the domain of hunting and wild fauna .
The Scientific Council of the National Hunting and Wildlife Office, answerable to the Senior Executive Officer, gives its opinion to the Senior Executive Officer on the establishment's policy regarding scientific and technical research. It assesses the scientific work of the establishment's researchers. It takes part in the assessment of the state of fauna and monitors its management.
The establishment is headed by a Senior Executive Officer appointed by decree, on the proposal of the Ministers for hunting and agriculture.
III. - The establishment's resources are made up of the revenue from hunting permits, grants and contributions from the State and other public corporate bodies with the tasks of sovereign power and patrimonial interest that it accomplishes, fees for services rendered, the revenue from loans, donations and bequests and revenue from the sales it makes within the framework of its assignments. A ruling sets the rules for presenting the budget and the accounts of the establishment, distinguishing, in terms of resources and responsibilities, the tasks of sovereign power and patrimonial interest of the hunting-related missions.
Subsection 2 General administration Articles L421-2 to
L421-4
Article L421-2 The gamekeepers of the National Hunting and Wildlife Office are subject to a national statute.
Article L421-3 The functions of an agent of the National Hunting and Wildlife Office, commissioned and sworn, are subject to the
rules governing incompatibility set out in Article L. 341-4 of the Code forestier.
Article L421-4 I. - Under exceptional circumstances, the commissioned and sworn agents may, following a decision by the equal
representation consultative committee, be subject to the following measures: 1° If they have accomplished a duly certified act of bravery or have been grievously injured in the exercise of their
duties, they may be promoted to one of the ranks above their grade or to the next highest rank, 2° If they have been fatally injured under the same circumstances, they may be promoted to a higher rank
posthumously. II. - Agents to be promoted under the terms of the abovementioned provisions are, unless they are already included,
entered onto the promotion list for the current year. In the event of death, they are promoted on the day of death. III. - Exceptionally, trainee agents may, on decision of the equal representation consultative committee, be
posthumously considered as contracted employees if they are fatally injured in the execution of their duties.
SECTION IV Département hunting federations Articles L421-5 to
L421-11-1
Article L421-5 (Act no. 2003-698 of 30 July 2003 Article 6 Official Journal of 31 July 2003) (Order no. 2003-719 of 1 August 2003 Article 1 Official Journal of 3 August 2003) (Act no. 2005-157 of 23 February 2005 Article 168 VII, Article 177 Official Journal of 24 February 2005)
The associations known as fédérations départementales des chasseurs participate in the improvement of the hunting heritage of the département, in the protection and management of fauna and of its habitats. They carry out the promotion and defence of hunting as well as the interests of their members.
They provide their assistance in the prevention of poaching. They conduct informational, educational and technical
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ENVIRONMENTAL CODE support actions aimed at land managers and hunters and, where applicable, individual game wardens.
They coordinate the actions of commune-level and inter-commune approved hunting associations. They carry out actions to prevent damage to wildlife and to indemnify game-related damage under the terms set out
in Articles L. 426-1 and L. 426-5. In association with the owners, the managers and the users of the land concerned, they draw up a game
management plan for the département, in accordance with the provisions of Article L. 425-1. They can provide their assistance in approving hunting permits. Specialist hunting associations are associated with the work of the federations. The federations can recruit development agents for the fulfilment of their assignments, duly mandated for this
purpose. In particular, these agents monitor compliance with the game management plan for the département. Under the terms set by a Conseil d'Etat decree, their investigations have probative force unless proven otherwise.
Article L421-6 (Act no. 2003-698 of 30 July 2003 Article 8 Official Journal 31 July 2003)
The département hunting federations can exercise rights recognised as being those of the civil party concerning acts constituting an infringement of the provisions of this Title and the enactments for its application, which cause direct or indirect damage to the collective, material or moral interests that it is their purpose to defend.
For this purpose, a copy of the official records and reports provided in Articles L. 428-19 and following is sent to the president of the département or inter-département federation concerned.
Article L421-7 (Act no. 2003-698 of 30 July 2003 Article 9, Article 10 1 Official Journal 31 July 2003)
I. - In accordance with the regional orientations for wildlife management and the improvement of the quality of habitats, as drawn up by the regional Préfet, or when the region has been asked to exercise this competence by the President of the regional council, a game management plan will be set up in each département. This plan is drawn up for a renewable period of five years. It is drawn up by the département hunting federation taking into account the département agricultural and forestry land management document mentioned in Article L. 112-1 of the Code rural and approved, following a decision from the département hunting and wildlife council, by the Préfet, who checks, in particular, its compliance with the principles set out in Article L. 420-1. It may be backed up by local plans, drawn up and approved using the same procedure. These plans are implemented under the supervision of the Préfet and govern the actions of the département hunting federation.
II. - In particular, the département game management plan includes: 1° The kill ratio and plan of operations, 2° The measures relating to the safety of hunters and non-hunters, 3° Actions with a view towards improving hunting practices, such as the design and compilation of approved plans
of operations, the setting of the maximum authorised quotas, the regulation of predators and pests, game releases, the bloodline search in large game and the prescriptions relating to corn strewing,
4° The actions carried out with a view to conserving or restoring natural wildlife habitats. III. - To ensure improved coordination of hunting actions, the beneficiaries of kill ratios and plans of operations are
members of the département hunting federation. IV. - The département game management plan applies to all the hunters, societies, groups and hunting associations
of the département.
Article L421-8 (Act no. 2003-698 of 30 July 2003 Article 11 Official Journal 31 July 2003)
I. - There can only be one hunting federation per département. II. - In the general public interest and in order to contribute to the coordination and consistency of hunting activities
in the département, the hunting federation of each département includes: 1° The holders of a current hunting permit who have validated it in the département; 2° Persons and legal entities that hold hunting rights on the lands of a département and beneficiaries of kill ratios or
plans of operations for all or part of the lands in question. III. - Furthermore, other members of the federation may be: 1° Any other holder of a licence to hunt or holder of hunting rights on land located within the département; 2° Unless refused by the federation's Board of Directors, any other person wishing to have the benefit of the
federation's services. The same person can become a member of the département federation in his or her capacity as a holder of a
hunting permit and as a holder of hunting rights. IV. - Membership is confirmed by the payment of a yearly membership fee, the amount of which can vary depending
on whether the member is a hunter or is the holder of hunting rights and which is proposed by the Board of Directors and set during the annual general meeting.
Members can also be asked for possible contributions decided upon by the federation to insure compensation for game-related damage, in accordance with Article L. 426-5.
Article L421-9 (Act no. 2003-698 of 30 July 2003 Article 12 Official Journal 31 July 2003)
The Articles of the département hunting federations must conform to a template provided by the Minister for hunting. Their general meetings pronounce by a majority vote by the members either present or represented.
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ENVIRONMENTAL CODE Each hunting permit holding member of a federation has one vote. They can give a proxy to another member of the
same federation. Each holder of hunting rights within the département who is a member of a federation has a certain number of
votes, the total of which depends, subject to a ceiling, on the surface area of their land. They can give a proxy to another member of the same federation.
The allocation of the maximum number of direct or proxy votes available to each member is set out in the Articles template mentioned in the first paragraph.
Any person who is a member of a federation and has been the holder of a valid hunting permit for five consecutive years can be put forward as a candidate for the Board of Directors, irrespective of his or her age.
Article L421-9-1 (Act no. 2003-698 of 30 July 2003 Article 13 Official Journal of 31 July 2003) (Act no. 2005-845 of 26 July 2005 Article 173 V Official Journal of 27 July 2005, in force on 1st January 2006 subject to Article 190)
Each département hunting federation appoints, in accordance with the terms of Article L. 612-3 of the Code de commerce, an auditor who will perform his or her duties in accordance with the methods set out in this Article.
The special report mentioned in the third paragraph of Article L. 612-3 of the Code de commerce is sent to the Préfet by the auditor.
Article L421-10 (Act no. 2003-698 of 30 July 2003 Article 14 Official Journal 31 July 2003)
The Préfet checks the performance of the public service assignments in which the département hunting federation takes part.
He or she receives the minutes of the decisions made by the general meeting, the yearly auditor's report and the yearly accounts.
The federation's budget is enforceable in all legality once it has been sent to the Préfet. If the Préfet finds, after having listened to the comments of the federation's President, that the approved budget is
insufficient to carry out its role in the compensation for game-related damage and in the organisation of the preparatory training required to examine hunting permits, he or she will officially proceed to the allocation of the required revenue and expenditure to this budget.
Article L421-11 (Act no. 2003-698 of 30 July 2003 Article 15 Official Journal 31 July 2003)
The département federations are free to use their reserve funds in compliance with the object of the federation.
Article L421-11-1 (Act no. 2003-698 of 30 July 2003 Article 14 Official Journal of 31 July 2003) (Act no. 2005-845 of 26 July 2005 Article 173 V Official Journal of 27 July 2005, in force on 1st January 2006 subject to Article 190)
In the event of the implementation of the provisions contained in the third paragraph of Article L. 612-3 of the Code de commerce, or of serious and persistent failure on the part of a département federation to fulfil its role in the compensation for game-related damage and in the organisation of the preparatory training required to examine hunting permits officially noted following a procedure with all parties present, the Préfet sends his or her observations to the chambre régionale des comptes. If the chambre régionale des comptes finds that the département federation has not taken adequate measures to re-establish a normal operational situation, it can ask the Préfet to carry out administration of the federation or, ex officio, the management of its budget until execution.
SECTION V Inter-département hunting federations Article L421-12
Article L421-12 (Act no. 2003-698 of 30 July 2003 Article 17 Official Journal 31 July 2003)
Two Inter-département hunting federations have been set up, one for the départements of Essonne, Val-d'Oise and Yvelines, and the other for the départements of Paris, Hauts-de-Seine, Seine-Saint-Denis and Val-de-Marne.
The provisions that apply to the département federations also apply to the federation mentioned in the first paragraph, subject to the reservations in terms of the adaptations required due to their inter-département nature.
The rules for appointing the Board of Directors for the Inter-département federation which includes Paris, Hauts-de-Seine, Seine-Saint-Denis and Val-de-Marne stipulate that half its members are appointed by the Minister for hunting from among persons qualified in the hunting sector and put forward as candidates by the national hunting federation, and that the other half are elected by federation members. The President is appointed by the Minister for hunting on the recommendations of the Board of Directors.
SECTION VI Regional hunting federations Article L421-13
Article L421-13 (Act no. 2003-698 of 30 July 2003 Article 10 2°, Article 18 Official Journal 31 July 2003) (Act no. 2005-157 of 23 February 2005 Article 153, Article 159 III Official Journal of 24 February 2005)
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ENVIRONMENTAL CODE The associations that come under the name of regional hunting federation encompass all of the département and
inter-département federations in the same administrative region of metropolitan France in which membership is confirmed by the payment of a mandatory membership fee. They ensure that the département and inter-département hunting federations are represented on a regional level. They conduct and coordinate actions in favour of the wild fauna and its habitats.
They are associated by the competent authority with the drawing-up of the region's orientations in terms of management and conservation of the wild fauna and its habitats mentioned in Article L. 414-8.
Specialist hunting associations are associated with the work of the regional federation. The provisions of the first paragraph of Article L. 421-9, Article L. 421-10 and Article L. 421-11 apply to the regional
hunting associations.
SECTION VII National hunting federation Articles L421-14 to
L421-18
Article L421-14 (Act no. 2003-698 of 30 July 2003 Article 19, Article 20 Official Journal 31 July 2003)
The association that comes under the name of national hunting federation encompasses all of the département, inter-département and regional federations in which membership is confirmed by the payment of a mandatory membership fee. It ensures that the département, inter-département and regional federations are represented on the national stage.
It is responsible for the promotion and defence of hunting and also for representing hunting interests. It coordinates the actions of the département, inter-département and regional hunting federations.
Specialist hunting associations are associated with the work of the national federation. Each year, at its general meeting, the national hunting federation decides on the minimum amounts of membership
fees to be paid by each member of the département and inter-département hunting federations. It manages, under the conditions set by a Conseil d'Etat decree, financial assets called national hunting funds which
ensure, on the one hand, equalisation between the département hunting federations, depending on their resources and responsibilities and, on the other hand, the prevention of and compensation for game-related damage carried out by the département hunting federations. These funds are supplied by the mandatory contributions paid by the département hunting federations and also by the revenue of a national fee paid to the national hunting federation by each game hunter who has validated a national hunting permit.
The national hunting federation draws up a French Hunting Charter. This states the principles for the sustainable development of hunting and its contribution to biodiversity. This document establishes a code of behaviour for hunters and the good hunting practices implemented by each département hunting federation and its members.
Each year, the département and inter-département hunting federations notify the national federation of the number of members in each category for the current financial year. A copy of this file, described in Article L. 423-4, is sent yearly to the national hunting federation.
Article L421-15 (Act no. 2003-698 of 30 July 2003 Article 21 Official Journal of31 July 2003) (Act no. 2005-845 of 26 July 2005 Article 173 V Official Journal of 27 July 2005, in force on 1st January 2006 subject to Article 190)
The Articles of the national hunting federation must conform to a template adopted by the Ministers for Hunting and Agriculture.
The national hunting federation appoints, in accordance with the terms of Article L. 612-3 of the Code de commerce, an auditor who will perform his or her duties in accordance with the methods stipulated in this Article.
The special report mentioned in the third paragraph of Article L. 612-3 of the Code de commerce is sent by the auditor to the Minister for hunting.
Article L421-16 (Inserted by Act no. 2003-698 of 30 July 2003 Article 21 Official Journal 31 July 2003)
The Minister for hunting checks the performance of the public service assignments in which the national hunting federation takes part. He or she receives the minutes of the decisions made by the general meeting, the yearly auditor's report and the yearly accounts.
The federation's budget is enforceable in all legality once it has been sent to the Minister for hunting. If the Minister for Hunting finds, after having listened to the comments of the President of the national federation, that the approved budget is insufficient to ensure operation of the equalisation funding, he or she will, ex officio, allocate the required revenue and expenditure to this budget.
Article L421-17 (Act no. 2003-698 of 30 July 2003 Article 21 Official Journal of 31 July 2003) (Act no. 2005-845 of 26 July 2005 Article 173 V Official Journal of 27 July 2005, in force on 1st January 2006 subject to Article 190)
In the event of the implementation of the provisions contained in the third paragraph of Article L. 612-3 of the Code de commerce, or of serious and persistent failure on the part of a département federation to fulfil its fund management role mentioned in Article L. 421-14 of this Code, noted following a procedure with all parties present, the Minister for
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ENVIRONMENTAL CODE hunting sends his or her observations to the Cour des comptes. If the Cour des comptes finds that the national federation has not taken adequate measures to re-establish a normal operational situation, it can ask the Minister to carry out administration or, ex officio, management of its budget until execution.
Article L421-18 (Inserted by Act no. 2003-698 of 30 July 2003 Article 22 Official Journal 31 July 2003)
The national federation is free to use its reserve funds in accordance with the object of the federation.
SECTION VIII Miscellaneous provisions Article L421-19
Article L421-19 (Inserted by Act no. 2003-698 of 30 July 2003 Article 23 Official Journal 31 July 2003)
A Conseil d'Etat decree sets the method by which this Chapter is applied.
CHAPTER II Hunting territory Articles L422-2 to
L422-1
Article L422-1 Hunting is not permitted on another person's property without the consent of the owner or his or her legal
representatives.
SECTION I Approved commune and inter-commune hunting associations Articles L422-2 to
L422-26
Subsection 1 General provisions Articles L422-2 to
L422-5
Article L422-2 (Act no. 2005-157 of 23 February 2005 Article 169 Official Journal of 24 February 2005)
The aim of the approved commune and inter-commune hunting associations is to ensure correct technical organisation of hunting. They encourage the development of game and wildlife in their territory whilst observing a real agricultural-forestry-hunting balance, educate their members in good hunting practices, and ensure the regulation of pests and the respect of kill ratios by allocating the appropriate resources to this. Their role is also to provide the contribution of hunters to conserving natural wildlife habitats.
Their activity is carried out with all due respect to property, crops and harvests and is coordinated by the département hunting federation. The approved commune and inter-commune hunting associations cooperate with all the partners involved in rural life.
Article L422-3 The associations are formed in accordance with the Law of 1st July 1901 relating to association contracts. Approval is granted by the Préfet.
Article L422-4 There can only be one approved association per commune.
Article L422-5 Commune hunting associations must be formed within one year following the publication of Ministerial or Prefecture
rulings drawing up or completing the list of départements and communes mentioned in Articles L. 422-6 and L. 422-7. On expiry of this same period of time, no hunting society or association located in these départements or
communes can enjoy, unless approved by the Préfet, the benefit of this section, or call itself an approved commune hunting association.
Subsection 2 Set-up of approved commune hunting associations Articles L422-6 to
L422-7
Article L422-6 The list of départements in which commune hunting associations must be set up is decided upon by the Minister for
hunting on the recommendations of the Préfets, following the assent of the General Councils, Chambers of Agriculture and the département hunting federations that have been consulted.
Article L422-7 In départements other than those mentioned in Article L. 422-6, the list of communes in which a commune hunting
association will be created is decided upon by the Préfet on request, and justified by the amicable agreement of 60% of the owners representing 60% of the land area of the commune, this agreement remaining valid for a period of at least five years.
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ENVIRONMENTAL CODE The territories already modified at 1st September 1963 and with a surface area larger than that determined in Article
L. 422-13 are not included in the calculation.
Subsection 3 Methods of constitution Articles L422-8 to
L422-9
Article L422-8 In the communes in which a commune hunting association is to be set up, an enquiry, on the behest of the Préfet,
determines the land subject to the actions of the commune hunting association relating to the contribution of owners and holders of hunting rights.
Article L422-9 On the request of the commune association, these contributions are considered to be made automatically for a
period of five years, renewable, if within three months after the displaying at the Town Hall of a notice announcing the constitution of the commune association, and the sending of registered letters with acknowledgement of receipt to all owners or holders of hunting rights fulfilling the conditions set out in Article L. 422-13, the people mentioned in parts 3 and 5 of Article L. 422-10 have not made known, and justified, their opposition to the contribution of their hunting territory by means of a registered letter with acknowledgement of receipt.
Subsection 4 Territory Articles L422-10 to
L422-20
Article L422-10 The commune association is set up on land other than that: 1° Located within a radius of 150 metres around any form of dwelling; 2° Surrounded by an enclosure as defined in Article L. 424-3; 3° Having been the subject of opposition by the owners and holders of hunting rights on the land area of one sole
holder greater than the minimum land areas mentioned in Article L. 422-13; 4° Being part of the State owned, département and commune public estates, State forests and the French railway
network and the Société nationale des chemins de fer français (French Railway Company) holdings; 5° Having been the subject of opposition by the owners and co-owners who, out of personal conviction are
collectively and unanimously opposed to the practice of hunting, prohibit, including for themselves, the practice of hunting on their property, without prejudice to the consequences linked to the owner's liability, most notably in respect of damage which could be caused by game coming from their property.
When the owner is a legal entity, opposition can be formulated by the manager of the organisation specifically mandated to do so.
Article L422-11 In State forests, and notwithstanding the provisions of Article L. 422-10, certain lands may, on the decision of the
appropriate authority, be leased to the commune or inter-commune association. Other areas part of the private State-owned land may, if decided upon by the appropriate authority, be excluded, irrespective of surface area, from the scope of this present section.
Article L422-12 The association may include in its zone, on request by the owners and holders of hunting rights, land that belongs
to neighbouring estates, as long as these areas do not impinge on the neighbouring hunting association's land by more than one tenth of its extent.
Article L422-13 I. - To be admissible, opposition by the owners or holders of hunting rights mentioned in 3° of Article L. 422-10 must
relate to lands in a single stretch and with a minimum surface area of twenty hectares. II. - This minimum is lowered for the hunting of water game: 1° To three hectares for non reclaimed marshland; 2° To one hectare for isolated lakes; 3° To fifty ares for lakes on which static huts and hides were already installed on 1st September 1963, III. - This minimum is lowered for pigeon hunting to one hectare on land where static positions for this type of
hunting were already installed on 1st September 1963. IV. - This minimum is raised to one hundred hectares for mountain lands located above the forest line. V. - Rulings made per département can, under the conditions stipulated in Article L. 422-6, increase the minimum
land areas thus defined. Increases cannot exceed twice the set minimums.
Article L422-14 (Act no. 2005-157 of 23 February 2005 Article 168 XI Official Journal of 24 February 2005)
The opposition mentioned in 5° of Article L. 422-10 is admissible on condition that the opposition relates to all of the land belonging to the owners or co-owners concerned.
This opposition is taken as a renunciation of the right to hunt on these lands. It does not constitute any obstacle to
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ENVIRONMENTAL CODE the application of Article L. 415-7 of the Code rural. In this case, the permit holder's right to hunt is subject to the same restrictions as those that come under the auspices of the local customs that apply on neighbouring hunting lands and those resulting from the département hunt management plan described in Section 1 of Chapter V of Title II of Book IV.
Article L422-15 The person who has expressed opposition is obliged to signpost his or her land in order to indicate that hunting is
prohibited. The owner or the holder of hunting rights who has stated opposition is obliged to carry out, or have carried out the
destruction of pest animals and the regulation of species on their property that cause damage. The crossing by hunting dogs of lands classified as a reserve or under opposition in respect of 3° and 5° of Article L.
422-10 cannot be considered as hunting on a reserve or another person's property, unless the dogs are encouraged by the hunter to do so.
Article L422-16 The contribution of hunting rights by an owner or holder of hunting rights leads to the extinguishing of all other
hunting rights, unless a clause specifying otherwise is concluded between the parties.
Article L422-17 Contribution gives rise to compensation from the association if the owner suffers a loss in revenue resulting from
being deprived of what previously had been a source of income. The amount of this compensation is set by the competent court, as is that due from the association to a holder of
hunting rights who contributes to improvements on the land for which he or she has hunting rights.
Article L422-18 Opposition expressed in application of 3° and 5° of Article L. 422-10 takes effect on expiry of the current five year
period, on condition that notification has been given six months prior to the end of this period. Failing this, it will come into effect on expiry of the next period. The person who formulates the opposition notifies the Préfet.
In this case, the association can claim compensation from them, the amount of which is set by the competent court and corresponds to the value of the improvements that it has contributed.
Article L422-19 When land that has been excluded from the territory of the commune association in application of 5° of Article L.
422-10 changes ownership, the new owner may, within a deadline of six months from the change of ownership, maintain opposition for reasons of personal conviction. Otherwise, the land will be included in the association's hunting lands.
Article L422-20 In organised hunts such as the private commune hunting associations, the right to hunt in enclaves of a surface
area less that the minimums set out in Article L. 422-13 must be ceded to the hunting federation, which should, by way of exchange, agreement or rental, transfer them to the holder of hunting rights on the land where these enclaves are located, or reserve them.
Subsection 5 Mandatory provisions contained in approved commune hunting
association Articles Articles L422-21 to L422-22
Article L422-21 (Act no. 2001-602 of 9 July 2001 Article 64 Official Journal 11 July 2001) (Act no. 2003-698 of 30 July 2003 Article 21 Official Journal 31 July 2003)
I. - Each association's Articles should contain a provision for admitting holders of valid hunting permits: 1° Either living in the commune or having a residence in the commune for which they, on the year they are admitted
to the association, have fulfilled for four years in succession, the position of one of the four direct contributors; 2° Or owners or holders of hunting rights having contributed their hunting rights, as well as, if they are also holders
of a hunting permit, their partners, parents, children and grandchildren, son-in-laws, daughter-in-laws of the contributing partner(s);
2°(cont.) Or persons having contributed their hunting rights attached to one or more land parcels, prior to the transfer of ownership of this land to a forestry unit, as well as, if they also are holders of a hunting permit, their partners, parents, children and grandchildren, son-in-laws, daughter-in-laws of the contributing partner(s);
3° Or lessees of a rural property when the owner has contributed his or her hunting rights; 4° Or owners of land used for hunting by the association and who have become owners due to inheritance or a
donation between inheritors during a five-year period. II. - These Articles should also state the minimum number of association members and allow for the admission of a
minimum percentage of hunters that does not come into any of the aforementioned categories. III. - Unless he or she has stated his or her opposition to hunting under the terms set out in 5° of Article L. 422-10,
the non-hunter owner of lands incorporated in the association's hunting land becomes, on his or her request and free of charge, a member of the association, without being obliged to cover any possible deficit of the association. The association will undertake the required procedures in respect of him or her.
IV. - The owner or holder of hunting rights having exercised the right of opposition cannot become a member of the association, unless decided otherwise by the approved commune hunting association on its own authority.
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ENVIRONMENTAL CODE V. - In addition to the above listed provisions, the Articles of each association should contain the mandatory clauses
set by the Conseil d'Etat.
Article L422-22 The membership of a commune hunting association confers the right to hunt over the whole of the association's
hunting lands, in compliance with its regulations.
Subsection 6 Reserves and game-keeping Article L422-23
Article L422-23 Approved commune and inter-commune hunting associations are obliged to create one or more commune or
inter-commune game reserves. The minimum land area of these reserves is one tenth of the association's total land area.
Subsection 7 Approved inter-commune hunting associations Article L422-24
Article L422-24 Approved commune hunting associations can constitute one or more approved inter-commune hunting associations
under the terms set by a Conseil d'Etat decree.
Subsection 8 Miscellaneous provisions Articles L422-25 to
L422-26
Article L422-25 Approved commune or inter-commune hunting associations are exonerated from all duties and taxes that could be
received from game reserves.
Article L422-26 A Conseil d'Etat decree sets out the terms under which this section is applied.
SECTION II Game reserves Article L422-27
Article L422-27 (Act no. 2002-92 of 22 January 2002 Article 24 XII Official Journal of January 2002) (Act no. 2005-157 of 23 February 2005 Article 164 Official Journal of 24 February 2005)
Game and wild fauna reserves have the following purposes: - protecting the populations of migratory birds in accordance with international undertakings; - ensuring the protection of natural environments that are indispensable to safeguarding endangered species; - encouraging the development of tools for the management of wild fauna and its habitats; - contributing to the sustainable development of hunting on rural territories. They are set up by the administrative authority at the initiative of the person who holds hunting rights or the
département or inter-département federation of hunters when actions in the public interest are to be consolidated. National game and wild fauna reserves are organised into a national network under the responsibility of the National
Hunting and Wildlife Office and the National Hunting Federation. The other reserves may be organised into département-level networks, the coordination of which is carried out by
département or inter-département federations of hunters. A Conseil d'Etat decree sets the conditions for setting up and operating game reserves. In particular, it sets out the
conditions under which the appropriate measures are to be taken to avoid adverse effects on human activities, to encourage the protection of game and its habitats and to maintain biological equilibriums.
In Corsica, the conditions for setting up and operating game reserves are set by decision of the Corsican Assembly.
SECTION III Maritime hunting Article L422-28
Article L422-28 I. - Maritime hunting is that which is carried out in: 1° The sea, within territorial waters; 2° Salt water lakes and water basins; 3° That part of tributary water basins, waterways, rivers and canals which is located upstream of the salt water limit; 4° The public maritime domain. II. - Its purpose, within the zones defined in I, is the pursuit, capture or destruction of birds and other game. III. - It is governed by this Title.
SECTION IV Hunting operations on State-owned property Article L422-29
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ENVIRONMENTAL CODE Subsection 1 Hunting operations in State-owned forests Article L422-29
Article L422-29 As stated in Article L. 137-3 of the Code forestier: "In the event of public adjudication for the purpose of the rental of hunting rights, the appropriate authority for
hunting operations may grant, under the terms set by a Conseil d'Etat decree, the departing tenant a priority, to the highest bid".
CHAPTER III Autorisation to hunt Articles L423-5 to
L423-4
Article L423-1 (Act no. 2005-157 of 23 February 2005 Article 165 I Official Journal of 24 February 2005)
No-one has the right to hunt without holding a valid hunting permit. A hunting permit is valid following on the one hand the payment of the hunting duties and stamp duty mentioned in
article L. 423-12 and on the other hand the payment of the fees stipulated in article L. 423-13, as well as the participation payments provided for in article L. 426-5 and the national contribution set out in article L. 421-14 when the hunting of large game is concerned.
Article L423-2 (Act no. 2005-157 of 23 February 2005 Article 165 II, Article 166 VIII Official Journal of 24 February 2005)
However, holders of a valid authorisation to hunt may hunt in the presence of and under the responsibility of a person who has held a valid hunting permit for at least five years and who has never had their right to have or hold a permit withdrawn by a court of law. For hunting with guns, the authorised person and the companion may not have more than one gun between them in the hunt zone.
Except for the persons described in article L. 423-25, the authorisation to hunt is issued free of charge by the administrative authority for one year and once per person, to minors of over fifteen years and majors who have received elementary practical training given by the département or inter-département federation of hunters, with the assistance of the National Hunting and Wildlife Office.
Articles L.424-4 and L. 424-5 apply to holders of authorisations to hunt. A Conseil d'Etat decree sets the conditions under which this authorisation to hunt is issued. NB: As the modification resulting from VIII of article 166 of Law no. 2005-157 is incompatible with that of II of article
165, it could not be made.
Article L423-3 For sea fishing, the professional deep sea fishermen and shellfish farmers, administratively assimilated into these
said fishermen, are dispensed from validating their hunting permit, as long as they hold an authorisation issued free of charge by the administrative authority on presentation of an insurance certificate drawn up under the terms set in this Chapter.
Article L423-4 (Act no. 2003-698 of 30 July 2003 Article 25 Official Journal of 31 July 2003) (Act no. 2005-157 of 23 February 2005 Article 166 I Official Journal of 24 February 2005)
I. - There is compiled a central national file of permits issued, validations and authorisations to hunt, the management of which is entrusted to the National Hunting Federation under the control of the National Hunting and Wildlife Office. The département and inter-département hunting federations send the list of their members who hold a permit, an approval and an authorisation to hunt to the file manager every year.
The judiciary authority informs the National Hunting and Wildlife Office and completes the central file described in the first paragraph regarding the sentences passed under the terms of L. 428-14 and L. 428-15 of the present Code, as well as of any withdrawal of hunting permits pronounced under the terms of Articles 131-14 and 131-16 of the Code pénal. The administrative authority informs the National Hunting and Wildlife Office and completes the central file regarding the inclusion on the computerised national file of persons prohibited from acquiring and holding arms as provided for in article L. 2336-6 of the Code de la défense.
II. - A Conseil d'Etat decree following the opinion of the National Computerised Data and Privacy Commission specifies the means by which this Article is applied.
SECTION I Examination for the granting of a hunting permit Articles L423-5 to
L423-8
Article L423-5 (Act no. 2005-157 of 23 February 2005 Article 166 II Official Journal of 24 February 2005)
The award of a hunting permit is subject to passing an examination. This examination mainly covers knowledge of wildlife, hunting regulations, as well as the safety rules that must be followed when handling arms, mastery over which will be assessed during a practical trial. It includes eliminatory procedures and is organised on behalf of the State by the National Hunting and Wildlife Office, with the assistance of the département and inter-département federations of
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ENVIRONMENTAL CODE hunters under conditions defined by regulatory means.
The administrative authority called upon to award the hunting permit will first consult a panel composed half of State representatives and half of representatives of the département federation of hunters.
However, people who obtained their hunting permit or authorisation from the maritime affairs administration prior to 1st July 1976 are exempted from the examination.
Article L423-6 (Order no. 2000-916 of 19 September 2000 appendix Official Journal of 22 September 2000 in force on 1st January 2002) (Act no. 2005-157 of 23 February 2005 Article 166 III Official Journal of 24 February 2005)
In order to enter for the examination for the hunting permit, the applicant must give the National Hunting and Wildlife Office a medical certificate attesting that his or her physical and psychological state of health is compatible with the possession of a weapon.
A fixed duty of up to 16 euros is also payable, by decree of the Minister for hunting and the Minister for the budget. The revenue from these duties is handed over to the National Hunting and Wildlife Office to be allocated to the
organisation of examinations.
Article L423-7 The following people are obliged to take the examination provided for under Article L. 423-5 before a new hunting
permit can be issued: 1° Those with their right to obtain or hold a hunting permit temporarily suspended by court order; 2° Those whose permit would be legally null and void under the terms of Article L. 423-11.
Article L423-8 The Département Hunting Federations organise the training of candidates for the theoretical and practical
examinations for the award of hunting permits. Hunting arms are made available to the people taking part in this training. The Département Hunting Federations also organise training open to hunting permit holders, and aimed at a more
in-depth understanding of wildlife, hunting regulations and arms.
SECTION II Granting and validation of a hunting permit Articles L423-9 to
L423-26
Subsection 1 Granting Articles L423-9 to
L423-11
Article L423-9 The hunting permit is granted by the administrative authority for life.
Article L423-10 For the issuing of the hunting permit and for every duplicate, stamp duty is payable as set in Article 964 of the Code
général des impôts. People exempted from the examination are also exempted from stamp duty.
Article L423-11 (Act no. 2005-157 of 23 February 2005 Article 166 IV Official Journal of 24 February 2005)
The following may not be awarded a hunting permit: 1 People aged under sixteen years old; 2 Majors under guardianship, unless they are authorised to hunt by the tutelage judge; 3 Those who, following a sentence, are forbidden to carry arms; 4 Those who have not served the sentences passed against them for one of the infringements stipulated by the
present Title; 5 Any person condemned to local banishment; 6 Those who have not produced the medical certificate stipulated in article L. 423-6; 7 People who have formed the opposition stipulated in 5 of article L. 422-10; 8 People, who, in accordance with article L. 428-14, do not have the right to hold or obtain a hunting permit; 9 Those who are listed on the computerised national file naming the persons prohibited from acquiring and holding
arms as described in article L. 2336-6 of the Code de la défense. On pain of the penalties incurred for the violations provided for in Article 441-6 of the Code pénal, any person
applying for a hunting permit must make a sworn declaration that he or she is not included in one of the cases of incapacity or prohibition stipulated above.
A hunting permit issued under a false declaration is legally null and void. In this case, it must be given to the Préfet on request. The sentences provided for may be applied to those who hunt without a valid permit.
Subsection 2 Validation of a hunting permit Articles L423-12 to
L423-18
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ENVIRONMENTAL CODE Article L423-12 (Order no. 2003-719 of 1 August 2003 Article 2 Official Journal of 5 August 2003) (Act no. 2005-157 of 23 February 2005 Article 166 IX Official Journal of 24 February 2005)
The payment of one of the hunting duties listed in sub-section 3 and the stamp duty mentioned in Article 964 of the Code général des impôts is considered as validation of the hunting permit as long as the holder fulfils the conditions set out in Articles L. 423-13, L. 423-15, and L. 423-16.
Article L423-13 No-one can obtain validation of the hunting permit without being a member of a Hunting Federation and without
paying the statutory fees. The Hunting Federation may not refuse membership to a person with a valid hunting permit.
Article L423-15 (Act no. 2005-157 of 23 February 2005 Article 166 V Official Journal of 24 February 2005)
The following may not obtain the validation of their hunting permit: 1 Non-emancipated minors aged under sixteen years, unless the validation is requested for them by their father,
mother or guardian; 2 Majors under guardianship, unless they are authorised to hunt by the tutelage judge; 3 Those who, following a sentence, are forbidden to carry arms; 4 Those who have not served the sentences passed against them for one of the infringements stipulated by the
present Title; 5 Any person condemned to local banishment; 6 People suffering from a medical condition or infirmity, the list of which is set by a Conseil d'Etat decree, making
the practice of hunting dangerous; 7 People who have formed the opposition stipulated in 5 of article L. 422-10; 8 People, who, in accordance with article L. 428-14, do not have the right to hold or obtain a hunting permit, or
whose permit is suspended in accordance with article L. 428-15; 9 Those who are listed on the computerised national file naming the persons prohibited from acquiring and holding
arms as described in article L. 2336-6 of the Code de la défense. On pain of the penalties incurred for the violations provided for in Article 441-6 of the Code pénal, any person
applying for a hunting permit must make a sworn declaration that he or she is not included in one of the cases of incapacity or prohibition stipulated above.
A hunting permit issued under a false declaration is legally null and void. In this case, the validation document must be given to the Préfet on request. The sentences provided for may be applied to those who hunt without a valid permit.
In case of doubt about the declaration relating to the conditions mentioned in 6, the Préfet may request a medical certificate.
Article L423-16 (Act no. 2003-719 of 1 August 2003 Article 3 Official Journal of 5 August 2003)
The hunter must have had taken out hunting liability insurance cover with a company authorised to practice in France to cover civil liability for an unlimited sum and without any deduction being opposable to victims or their legal representatives, for bodily harm caused by any hunting activity or culling of pests. This insurance must also cover the hunter's civil liability for damage by hunting dogs, under the same conditions.
Article L423-17 Any insurance policy covering the civil liability of hunters is, notwithstanding any clause to the contrary, considered
to include guarantees at least equivalent to those set in Article L. 423-16.
Article L423-18 The hunting permit ceases to be valid, and is provisionally withdrawn by the administrative authority, if the insurance
contract is terminated or if the guarantee provided by the policy is suspended for any reason whatsoever. The termination of the contract or suspension of the guarantee must be notified to the administrative authority by the
insurance company. The penalties set out in Article L. 428-3 apply to any person who refuses to hand over their hunting permit to the
representative of the appropriate authority under the terms of the provisions in this Article.
Subsection 3 Methods of validation of a hunting permit Articles L423-19 to
L423-21-1
Article L423-19 The validation of the hunting permit gives rise to the annual payment of a département-level or national hunting
duty. To obtain département-level validation of the hunting permit, the applicant must be a member of the corresponding
hunting federation.
Article L423-20 (Act no. 2005-157 of 23 February 2005 Article 166 VI Official Journal of 24 February 2005)
The hunting permit can be validated for a period of nine consecutive days. This validation is conditional on the
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ENVIRONMENTAL CODE payment of temporary hunting duties and a contribution to a federation. It can only be obtained once per hunting season.
The hunting permit can also be validated for a period of three consecutive days. This validation may be renewed twice in the course pf the same hunting season. It gives rise, on each occasion, to the payment of temporary hunting duties and a contribution to a federation.
These two methods of temporary validation may not be granted at the same time.
Article L423-21 (Act no. 2005-157 of 23 February 2005 Article 166 VII Official Journal of 24 February 2005)
The exercise of hunting in France by non-residents, either French or foreign, holding hunting permits issued abroad or any other administrative document of the same value, is conditional on the validation of these documents under the conditions applicable to hunting permits issued in France.
Article L423-21-1 (Act no. 2000-1353 of 30 December 2000 special amending acts Article 47 I, II Official Journal of 31 December 2000 in force on 27 July 2000) (Act no. 2000-1353 of 30 December 2000 special amending acts Article 47 III Official Journal of 31 December 2000 in force on 1st January 2002) (Act no. 2003-719 of 1 August 2003 Article 4 Official Journal of 5 August 2003)
The amount of the hunting duties is set by a joint decree issued by the Minister for Hunting and the Minister for the Budget, subject to the following ceilings:
National hunting duty: 194 euros Temporary national hunting duty: 116 euros Département hunting duty: 38 euros Temporary département hunting duty: 23 euros Water fowl hunting duty: 15 euros Hunting duties are paid to a Treasury accountant or a State controller assigned to a département or
inter-département hunting federation and authorised, in compliance with the rules and applicable guarantees in terms of stamp duty.
Subsection 5 Licences Article L423-22
Article L423-22 French citizens living abroad and non-resident foreigners may hunt as long as they have a temporary nine
consecutive day hunting licence that can be renewed three times a year by the administrative authority on presentation of the insurance certificate mentioned in Article L. 423-16 and of a hunting permit issued in France or in their country of residence, or any other administrative document that might replace it.
The granting of this hunting licence gives rise to the payment of the département or national temporary hunting duty and a temporary federal contribution.
Subsection 6 Refusals and exclusions Articles L423-23 to
L423-25
Article L423-23 Validation of the hunting permit is not granted: 1° to minors under 16 years old; 2° to non-emancipated minors of more than sixteen years of age, unless their father, mother or guardian requests
validation, 3° To adults who are wards of the State, unless the Judge for Wards authorises them to hunt.
Article L423-24 A hunting permit is not granted and not validated: 1° To any person who, after sentencing, is refused the right to carry arms; 2° To any person who has not purged the sentence placed on them for one of the offences covered by this present
Title; 3° Any person who after sentence is refused the right to remain in the country; 4° Any person suffering from one of the disorders or infirmities included on the list set by a Conseil d'Etat decree,
which result in making hunting dangerous; 5° Any person who has expressed opposition as covered in 5° of Article L. 422-10.
Article L423-25 I. - The granting of a hunting permit can be refused and a valid permit withdrawn in the case of: 1° Any individual who has been sentenced by law to lose one or more of the rights listed in Article131-26 of Code
pénal; 2° Any person sentenced to more than six months' imprisonment for rebellion or violence against representatives of
the public authorities; 3° Any person sentenced for the offence of belonging to an illegal organisation, the manufacture, sale and
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ENVIRONMENTAL CODE distribution of explosives, munitions and weapons of war; written or verbal menaces with orders or under conditions; obstruction to seed transactions; the destruction of trees or cultivated harvests, and of plants whether sown naturally or by man;
4° Any person who has been sentenced for theft, false pretences, and confidence trickery. II. - The facility to refuse the granting or to withdraw validation of a hunting permit to people convicted for the
offences mentioned in 2°, 3° and 4° expires five years after sentence has been purged .
Subsection 7 Provisions specific to certain officials Article L423-26
Article L423-26 The Préfet can place any limitations that he or she considers necessary, in the interest of gamekeepers or police,
on hunting by the officials mentioned in 1° and 2° of Article L. 428-20.
SECTION III Allocation of hunting permit fees Article L423-27
Article L423-27 (Act no. 2005-157 of 23 February 2005 Article 166 VIII Official Journal of 24 February 2005)
The amount of the fees mentioned in Article L. 423-19 is paid to the National Hunting and Wildlife Office to be allocated to its expenditure.
CHAPTER IV Hunting activity Articles L424-1 to
L424-16
SECTION I Protection of game Article L424-1
Article L424-1 Without any influence on his or her right to decree the culling of the wild animals listed in Article L. 427-9, the
Minister for Hunting can issue rulings for the purpose of: - preventing the culling and encouraging the repopulation of birds and all other species of game; - postponing the date for the clearing of all fallow land to be put to agricultural use in order to prevent the culling and
encourage the repopulation of all species of game.
SECTION II Hunting seasons Articles L424-2 to
L424-3
Article L424-2 (Act no. 2001-602 of 9 July 2001 Article 5 Official Journal of 11 July 2001) (Act no. 2003-698 of 30 July 2003 Article 27 Official Journal of 31 July 2003) (Act no. 2005-157 of 23 February 2005 Article 168 XI Official Journal of 24 February 2005)
No hunting is permitted outside the open hunting season periods set by the administrative authority, in accordance with the conditions set out by a Conseil d'Etat decree.
Birds cannot be hunted either during nesting or during the various stages of reproduction and dependency. Migratory birds cannot be hunted on their return flight to their nesting grounds.
Nonetheless, to enable, under strictly controlled and selective conditions, the capture, the holding and any other judicious activity involving very small numbers of various migratory land and water birds, exemptions may, in compliance with the provisions of Article L. 425-14, be granted.
A Conseil d'Etat decree sets the conditions under which this provision is applied.
Article L424-3 (Act no. 2005-157 of 23 February 2005 Article 167 I Official Journal of 24 February 2005)
I. Nonetheless, the owner or holder can at all times hunt or have hunted furred game in his or her possession adjoining a dwelling and enclosed by unbroken fencing creating a barrier with neighbouring properties and totally inhibiting the passage of both game and human beings.
In this case, the provisions of articles L. 425-4 to L. 425-14 are not applicable and the participation in the cost of compensating for damage by game provided for in article L. 426-5 is not due.
II. Professional hunting establishments of a commercial nature may be formed of open or closed territories in accordance with I of the present article. They possess this quality by being listed on the business register or on the farming scheme. Their activity is subject to declaration to the local Préfet and gives rise to the holding of a register.
In these establishments, the dates for hunting farm-reared birds are set by a ruling of the Minister for hunting.
SECTION III Hunting methods and resources Articles L424-4 to
L424-7
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ENVIRONMENTAL CODE Article L424-4 (Act no. 2005-157 of 23 February 2005 Article 167 II Official Journal of 24 February 2005)
During the period in which the hunting season is open, the hunting permit gives the right to daytime hunting to its holders, either to shoot, to hunt, by beating, or on the wing, in accordance with the distinctions laid down in the decrees issued by the Minister for hunting. Daytime means the time which begins one hour before sunrise in the principal town of the département and ends one hour after sunset.
It also gives the right to hunt water fowl in flight during legal hours, starting from two hours before dawn and up two hours after sunset, in the places mentioned in article L. 424-6.
In order to enable the strictly controlled selective hunting of very small numbers of migratory birds, the Minister for hunting authorises, under the terms which he or she defines, the use of traditional hunting methods and resources derogatory to those authorised by the first paragraph.
All methods of electronic assistance in the exercise of hunting other than those authorised by ministerial ruling are prohibited.
Limed twigs will be set up one hour before sunrise and removed at eleven a.m. All other methods of hunting, including the use of aircraft and vehicles, even as a means of beating, are prohibited. However, the use of a motorised vehicle is authorised as a means of transport to a shooting station on condition
that the hunting action is finished and the firearm is disassembled or placed in a gun bag or case. Notwithstanding the provisions of the previous paragraph, for hunting with hounds, transport in a motorised vehicle
from one shooting station to another may be authorised under the conditions set by the département hunting management scheme if the firearm is disassembled or placed in a gun bag or case.
Persons suffering from a motor handicap may make use of a motorised vehicle to go to their station. They may only shoot from their vehicle once they have switched the engine off.
Article L424-5 (Act no. 2003-698 of 30 July 2003 Article 28, Article 29, Art 31 Official Journal of 31 July 2003)
During the period in which the hunting season is open, the hunting permit also gives the holder the right to hunt waterfowl during the hours of darkness from static firing points such as hides, cabins, barrels and blinds which were already in existence on 1st January 2000 in the départements where this type of hunting is traditional. These départements are: Aisne, Ardennes, Aube, Aude, Bouches-du-Rhône, Calvados, Charente-Maritime, Côtes-d'Armor, Eure, Finistère, Haute-Garonne, Gironde, Hérault, Ille-et-Vilaine, Landes, Manche, Marne, Meuse, Nord, Oise, Orne, Pas-de-Calais, Pyrénées-Atlantiques, Hautes-Pyrénées, Seine-Maritime, Seine-et-Marne and Somme.
The moving of a static station requires the authorisation from the Préfet. Nonetheless, for hides, only a change of the land parcel or lot used for hunting is subject to authorisation.
Each owner of a static station as described in the first paragraph must declare it to the administrative authority and receive an acknowledgement which should be carried by the hunters carrying out night-time hunting from this static station.
The declaration of a static station commits its owner, in accordance with the methods laid down in the département hunting plan for the improvement of hunting facilities, to take part in the upkeep of the water basins and adjacent marsh and wetlands on which waterfowl hunting from this station is carried out. When there are several owners of static stations using the same water basin, they are collectively committed to taking part in the upkeep of these water basins and adjacent wetlands.
A written record of kills must be maintained for each static station described in the first paragraph.
Article L424-6 (Act no. 2005-157 of 23 February 2005 Article 167 III Official Journal of 24 February 2005)
In periods outside of the general opening and closing of the hunting season, hunting is open, water fowl can only be hunted:
1° In maritime hunting areas; 2° In non-reclaimed marshlands; 3° On waterways, rivers, canals, reservoirs, large and small lakes and water covered areas; hunting and firing at
this type of game is only authorised at a maximum distance of thirty metres from the water covered area, providing the hunter has the right to hunt on it.
Article L424-7 Nets, prohibited weapons or other hunting apparatus must not be held, supplied or carried outside of the home.
SECTION IV Sale and transport of game Articles L424-8 to
L429-1
Subsection 1 Permanent prohibition Articles L424-8 to
L424-11
Article L424-8 (Act no. 2005-157 of 23 February 2005 Article 167 IV Official Journal of 24 February 2005)
I. The transport, sale, putting on sale, holding for sale and purchase of living animals of species of which hunting is
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ENVIRONMENTAL CODE authorised or animals legally killed in hunts are:
1 Authorised all year round for mammals; 2 Prohibited for birds and their eggs, except for: - their transport for non-commercial purposes, including transport of decoys; - species the list of which is set by a ruling of the Minister for hunting. II. However, restrictions may be brought by the administrative authority to these provisions to prevent destruction or
encourage the restocking of game. III. The transport, sale, putting on sale, holding for sale and purchase of living or dead animals of species of which
hunting is authorised and which are born and bred in captivity are authorised all year round. IV. Notwithstanding the provisions of I and III, transport for the sale, putting on sale, holding for sale and purchase
of animals killed in hunts or dead from farms described in III are authorised if they respect the provisions relating to the traceability of products stipulated in articles L. 232-1, L. 232-1-1, L. 232-2 and L. 232-3 of the Code rural and if the animals have undergone a sanitary inspection in accordance with articles L. 231-1, L. 231-2 and L. 231-3 of the same Code.
V. A Conseil d'Etat decree specifies the conditions under which this Article is applied.
Article L424-9 (Act no. 2005-157 of 23 February 2005 Article 167 V Official Journal of 24 February 2005)
Large game killed accidentally and at any time following a collision with an automobile vehicle may be transported providing that the driver first warns the national gendarmerie or the national police force.
Article L424-10 (Act no. 2005-157 of 23 February 2005 Article 167 VI Official Journal of 24 February 2005)
It is prohibited to destroy, remove or intentionally damage nests and eggs, to collect eggs in the environment and to take them. It is prohibited to destroy, remove, sell, buy and transport the offspring or young of all mammals the hunting of which is authorised, subject to the provisions relating to pests.
Holders of hunting rights and their representatives have the right to gather eggs uncovered by ground clearance or harvesting in order to incubate them.
Article L424-11 (Act no. 2005-157 of 23 February 2005 Article 167 VII Official Journal of 24 February 2005)
The introduction into the natural environment of large game animals and rabbits, and the culling in the natural environment of living animals of species the hunting of which is authorised is subject to an authorisation from the Préfecture, under the conditions and according to the methods set by a joint ruling of the Minister for hunting and the Minister for agriculture.
Subsection 2 Temporary prohibition Articles L424-12 to
L429-1
Article L424-12 In each département during the hunting season, in order to safeguard certain species that are particularly
threatened, the Préfet may, as an exceptional measure, prohibit them from being put on sale, sale, purchase, transport with a view towards sale or peddling.
Article L424-13 The Minister for Hunting, the National Hunting and Wildlife Council, can with a view to ensuring the survival of
mountain game species threatened with extinction, totally prohibit their being put on sale, their sale and purchase in all forms, especially in the form of pâté or preserved meats, their transport with a view to sale or their peddling, for a maximum period of three years.
Article L429-1 (Act no. 2005-157 of 23 February 2005 Article 168 X Official Journal of 24 February 2005)
The provisions of this Title all apply to the Bas-Rhin, Haut-Rhin and Moselle départements, with the exception of those of Articles: L. 422-2 to L. 422-26, L. 424-8, L. 425-4, L. 426-1 to L. 426-8, L. 427-9 and L. 428-1, Paragraphs 1 and 2, and subject to the provisions of this Chapter.
SECTION V Special provisions for maritime hunting Article L424-14
Article L424-14 With regard to maritime hunting, the authorities competent to exercise the powers defined in Articles L.424-1 and L.
424-4 are determined by a Conseil d'Etat decree.
SECTION VI Safety rules Articles L424-15 to
L424-16
Article L424-15
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ENVIRONMENTAL CODE The rules guaranteeing the safety of hunters and third parties during a hunting foray or cull must be observed,
especially when guns are being used.
Article L424-16 The provisions of application of section are specified by a Conseil d'Etat decree.
CHAPTER V Management Articles L425-1 to
L425-15
SECTION I Département hunting management plans Articles L425-1 to
L425-3
Article L425-1 (Act no. 2005-157 of 23 February 2005 Article 168 III Official Journal of 24 February 2005)
A département hunting management plan is set up in each département. This plan is set for a renewable period of six years. It is drawn up by the département or inter-département federation of hunters in conjunction, notably, with the chamber of agriculture representatives of rural private property and representatives of forestry interests. It takes account of the local management of farming and forestland areas document mentioned in article L. 112-1 of the Code rural and of regional orientations for the management and conservation of wild fauna and its habitat mentioned in article L. 414-8 of the present Code. It is approved, after an assessment by the local commission competent in matters of hunting or wild fauna, by the Préfet, who checks, notably, its compatibility with the principles listed in article L. 420-1 and the provisions of article L. 425-4.
Article L425-2 (Act no. 2005-157 of 23 February 2005 Article 168 I Official Journal of 24 February 2005) (Act no. 2005-157 of 23 February 2005 Article 168 IV Official Journal of 24 February 2005)
The département hunting management plan comprises, notably: 1 Kill ratios and management plans; 2 Measures relating to the safety of hunters and non-hunters; 3 Actions with a view to improving the practice of hunting, such as the conception and production of approved
management plans, the setting of maximum authorised culls, the regulation of predatory and pest animals, releases of game, the tracking of wounded large game by following blood trails and the prescriptions relating to bait and feed provided for in article L. 425-5 and the shooting of water game with bait.
4 Actions conducted with a view to preserving and protecting by adapted measures, or restoring, the natural habitat of wild fauna.
5 Provisions enabling the achievement of an agricultural-forestry-hunting balance.
Article L425-3 (Act no. 2002-92 of 22 January 2002 Article 24 XIII Official Journal of 23 January 2002) (Order no. 2004-637 of 1 July 2004 Article 29 Official Journal of 2 July 2004 in force on 1st July 2005) (Act no. 2005-157 of 23 February 2005 Article 168 I Official Journal of 24 February 2005) (Act no. 2005-157 of 23 February 2005 Article 168 V Official Journal of 24 February 2005)
The département hunting management plan is opposable to hunters and to hunting societies, groupings and associations in the département.
SECTION II Agricultural-forestry-hunting balance Articles L425-5 to
L425-4
Article L425-5 (Act no. 2003-698 of 30 July 2003 Article 32 Official Journal of 31 July 2003) (Act no. 2005-157 of 23 February 2005 Article 168 I Official Journal of 24 February 2005) (Act no. 2005-157 of 23 February 2005 Article 168 VIII Official Journal of 24 February 2005)
Baiting and feeding are authorised under the conditions defined by the département hunting management plan.
Article L425-4 (Order no. 2000-916 of 19 September 2000 appendix Official Journal of 22 September 2000 in force on 1st January 2002) (Act no. 2005-157 of 23 February 2005 Article 168 I Official Journal of 24 February 2005) (Act no. 2005-157 of 23 February 2005 Article 168 VIII Official Journal of 24 February 2005)
The agricultural-forestry-hunting balance consists of ensuring compatibility between the sustainable presence of a rich and varied wild fauna and the sustainability and economic profitability of farming and forestry activities.
In accordance with the principles defined in article L. 420-1, this balance is ensured by the concerted and sustainable management of wild fauna species and their farmland and forestland habitats.
The agricultural-forestry-hunting balance is sought by a combination of the following means: hunting, regulation, prevention of game damage by the set-up of protective measures and dissuasive measures, as well as, where
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ENVIRONMENTAL CODE applicable, authorised destruction processes. The search for management practices and systems taking account of both the production objectives of the managers of farmland and forestland habitats and the presence of wild fauna contributes to this. The compensation mentioned in article L. 426-1 may contribute to this balance.
The agricultural-forestry-hunting balance allows the regeneration of forest populations under economic conditions that are satisfactory to the owner in the forest territory concerned. It takes account of the principles defined in article L. 1 of the Code forestier and the provisions of regional forestry orientations.
SECTION III Kill ratio Articles L425-6 to
L425-13
Article L425-6 (Inserted by Law no. 2005-157 of 23 February 2005 Article 168 IX Official Journal of 24 February 2005)
The kill ratio determines the minimum and maximum number of animals to be culled on the hunting territory. It aims to ensure the sustainable development of game populations and to preserve their habitats, while reconciling farming, forestry and hunting interests.
For large game, after consultation of representatives from farming and forestry, the kill ratio is set for a period which may be three years and revisable annually; it is set for one year for small game.
To ensure agricultural, forestry and hunting balance, the kill ratio is applied over the entire national territory for certain species of game, the list of which is set by a Conseil d'Etat decree. When this refers or wild boar, the kill ratio is implemented after an assessment by the département or inter-département federations of hunters.
Article L425-7 (Inserted by Law no. 2005-157 of 23 February 2005 Article 168 IX Official Journal of 24 February 2005)
Any person with hunting rights on a territory and who wishes to obtain an individual kill ratio must make a request for it. However, when the contract for rental or free availability of the hunting right expressly provides for it, the request is made by the owner or his or her representative.
When the holder of the hunting right is not the owner of the territory for which the request is made and when he or she does not rent his or her hunting right, the holder of the hunting right informs the owner(s) of the territory or their representatives of his or her request for an individual kill ratio. They may then make known their disagreement if needs be, and formulate their own request for a kill ratio.
The owners mentioned in the previous paragraph may have recourse to the provisions of article L. 247-8 of the Code forestier.
Article L425-8 (Act no. 2005-157 of 23 February 2005 Article 168 I, XIV Official Journal of 24 February 2005) (Order no. 2004-637 of 1 July 2004 Article 29 Official Journal of 2 July 2004 in force on 1st July 2006) (Act no. 2005-157 of 23 February 2005 Article 168 I Official Journal of 24 February 2005)
The kill ratio, which takes into account the orientations of the département hunting management plan, is implemented, following the opinion of the département commission competent in matters of hunting and wildlife, by the State representative in the département. In the event of exceptional circumstances, a new kill ratio may replace the current kill ratio. In Corsica, this ratio is drawn up and implemented by the Corsican territorial authority.
NB: The date on which article 29 of Order 2004-637 comes into force has been modified by Order 2004-727.
Article L425-10 (Inserted by Law no. 2005-157 of 23 February 2005 Article 168 IX Official Journal of 24 February 2005)
When the agricultural-forestry-hunting balance is disturbed or threatened, the Préfet suspends the application of the provisions of the kill ratio specifying the characteristics of animals to be shot, in order to facilitate the return to population levels compatible with this balance and consistent with the objectives of the kill ratio.
Article L425-11 (Inserted by Law no. 2005-157 of 23 February 2005 Article 168 IX Official Journal of 24 February 2005)
When the beneficiary of the kill ratio does not cull the minimum number of animals attributed to him or her, his or her financial liability may be engaged to bear all or part of the costs relating to the compensation mentioned in article L. 426-1 and the prevention of game-relating damage mentioned in article L. 421-5.
The same is true of people who have formed the opposition provided for in 5 of article L. 422-10 and who have not proceeded to the regulation of large game species.
Article L425-12 (Inserted by Law no. 2005-157 of 23 February 2005 Article 168 IX Official Journal of 24 February 2005)
When the agricultural-forestry-hunting balance is highly disturbed on a forestry territory managed in accordance with one of the management documents described in article L. 4 of the Code forestier, the beneficiary of the hunting right who has not culled the minimum number of animals attributed to him or her under the kill ratio must pay the owner, who is not the holder of the hunting right or who does not rent it, and who makes the detailed request for it:
- either all or part of the indispensable protection expenditure that has been engaged to assure the sustainability of the populations;
- or, if the forest population has been damaged significantly by a large game species subject to a kill ratio, a flat-rate compensation, the amount per hectare of which is set by a Préfecture ruling after assessment by the département
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ENVIRONMENTAL CODE commission competent in matters of hunting and wildlife, and respecting an inter-ministerial scale jointly defined by the Ministers for hunting and for forestry.
Article L425-13 (Inserted by Law no. 2005-157 of 23 February 2005 Article 168 IX Official Journal of 24 February 2005)
A Conseil d'Etat decree determines the methods of application of the present section.
SECTION IV Maximum authorised cull Article L425-14
Article L425-14 (Inserted by Law no. 2005-157 of 23 February 2005 Article 168 I Official Journal of 24 February 2005)
Under the terms set by a Conseil d'Etat decree, the Minister can, following an opinion from the National Hunting Federation and the National Hunting and Wildlife Office, set the maximum number of animals that a hunter is authorised to kill during a given period and over a given territory.
Under the same conditions, the Préfet may, on a proposal from the département or inter-département hunting federation, set the maximum number of animals that a hunter or group of hunters is authorised to kill during a given period and over a given territory.
These provisions take into account the orientations of the Département hunting management plan.
SECTION V Hunting management plan Article L425-15
Article L425-15 (Inserted by Law no. 2005-157 of 23 February 2005 Article 171 Official Journal of 24 February 2005)
On a proposal by the département or inter-département federation of hunters, the Préfet inscribes in the annual ruling for the opening or closure of the hunting season the methods of management of one or more species of game when those species are not subject to the implementation of the kill ratio.
CHAPTER VI Compensation for game-related damage Articles L426-1 to
L426-8
SECTION I Compensation for wild boar- and large game-related crop damage by the
département hunting federations Articles L426-1 to L426-6
Article L426-1 (Act no. 2005-157 of 23 February 2005 Article 172 I Official Journal of 24 February 2005)
In the event of damage to farm crops or harvests by wild boar or by other large game species coming from a reserve where they are being bred or from a stock subject to a kill ratio, the operator who has suffered damage requiring repair or bringing about agricultural losses can claim compensation from the département or inter-département federation of hunters.
Article L426-2 (Act no. 2005-157 of 23 February 2005 Article 172 I Official Journal of 24 February 2005)
No-one can claim compensation for damage caused by game from his or her own stock.
Article L426-3 (Act no. 2005-157 of 23 February 2005 Article 172 I Official Journal of 24 February 2005)
The compensation mentioned in Article L. 426-1 is only due if the amount of the damage is higher than the minimum set by a Conseil d'Etat decree.
Whatever the case, the compensation is subject to a proportional reduction set by a Conseil d'Etat decree. Furthermore, it can be reduced if it is shown that the victim of the damage has, by any means whatsoever,
encouraged the incursion of game onto his or her land, in particular by repeatedly sowing crops that are likely to attract them and without respecting the crop rotation practiced in the region. The same is true when the victim of the damage has refused the methods of prevention proposed to him or her by the département or inter-département federation of hunters.
In the event that the amount of the prejudice declared is more than ten times higher than that of the compensation before abatement, the assessment costs are deducted from this compensation.
Article L426-4 (Act no. 2005-157 of 23 February 2005 Article 172 I Official Journal of 24 February 2005)
The possibility of compensation from the Département federation of hunters leaves open the right to instigate proceedings against the person responsible as described in Article 1382 of the Code civil.
In the event that the injured party obtains compensation awarded by the courts, he or she must repay the Département federation of hunters the compensation that has already been paid by it.
In the event that the injured party obtains compensation by out-of-court means from the person responsible, without the agreement of the Département federation of hunters, then he or she loses his or her right to compensation, and must
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ENVIRONMENTAL CODE repay any sums that may have been paid.
The Département federation of hunters can always ask the responsible person, either through the courts or out of court, to pay the amount of compensation that it has awarded.
Article L426-5 (Act no. 2005-157 of 23 February 2005 Article 172 I Official Journal of 24 February 2005) (Order no. 2004-637 of 1 July 2004 Article 30 Official Journal of 2 July 2004 in force on 1st July 2006) (Act no. 2005-157 of 23 February 2005 Article 172 I Official Journal of 24 February 2005)
The Département federation of hunters investigates requests for compensation and offers compensation to claimants according to a département compensation scale. This scale is set by the département commission competent in matters of hunting and wildlife, which also sets the amount of the compensation in the event of disagreement between the claimant and the Département federation of hunters. A National compensation commission for game damage sets each year, for the main commodities, the minimum and maximum values of the prices to be taken into account in setting of département scales. Each year and for the same purposes, it also sets the minimum and maximum values of the costs of repair. When the scale adopted by a commission does not respect the values thus set, the National compensation commission is referred to. It can be referred to for appeals against the département commission decisions.
The composition of the National compensation commission for game damage and the département commissions competent in matters of hunting and wildlife ensures State representation, and particularly that of the National Hunting and Wildlife Office, hunters, farming and forestry interests under the terms set by a Conseil d'Etat decree.
In the framework of the kill ratio mentioned in article L. 425-6,a contribution is payable per animal by hunters for deer, fallow deer, mouflon sheep, roe deer and wild boar, whether male or female, young or adult, in order to ensure an indemnity to farmers whose crops or harvests have suffered major damage owing to these animals. The amount of this contribution is set by the general assembly of the département or inter-département federation of hunters, on a proposal of the administrative board.
When the revenue from the contributions described in the previous paragraph is not sufficient to cover the amount of the damage to be compensated, the département or inter-département federation of hunters will undertake to pay the excess compensation. It shares out the amount between its members or certain categories of members. It can demand a personal contribution from large game and wild boar hunters, or a donation for every game marking initiative or a combination of these two types of contribution. These contributions may be modulated according to the species of game, the sex, the categories of age, the hunting territories, and the management units.
A Conseil d'Etat decree specifies the terms under which Articles L. 426-1 to L. 426-4 of this Article are applied. NB: The date on which article 30 of Order 2004-637 comes into force has been modified by Order 2004-727.
Article L426-6 (Act no. 2005-157 of 23 February 2005 Article 172 I Official Journal of 24 February 2005)
All disputes arising from the application of Articles L. 426-1 to L. 426-4 come under the jurisdiction of the law courts.
SECTION II Legal compensation for crop damage Articles L426-7 to
L426-8
Article L426-7 (Act no. 2005-157 of 23 February 2005 Article 172 II Official Journal of 24 February 2005)
Actions to repair the damage caused to crops and harvests by game are barred at the end of six months from the day the damage occurs.
Article L426-8 (Act no. 2005-157 of 23 February 2005 Article 172 II Official Journal of 24 February 2005)
The compensation allocated to farmers for damage caused to their crops by any game whatsoever, cannot be reduced by any proportion whatsoever for motives relating to neighbourhood.
CHAPTER VII Destruction and control of pests Articles L427-1 to
L427-10
SECTION I Administrative measures Articles L427-1 to
L427-7
Subsection 1 Control Articles L427-1 to
L427-3
Article L427-1 (Act no. 2005-157 of 23 February 2005 Article 170, Article 172 III Official Journal of 24 February 2005)
Pest control officers are appointed by the administrative authority and take part, under its supervision, in the
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ENVIRONMENTAL CODE destruction of animals mentioned in articles L. 427-6 and L. 427-8 or, on occasion, in the animal regulation operations that it has ordered. They are consulted where needs be on the problems posed by the management of wild fauna.
Article L427-2 Pest control officers are sworn. They are authorised to investigate violations of hunting policing within their area. In the fulfilment of their roles they carry their commission and an insignia defined by the Minister for hunting.
Article L427-3 A decree by the Minister for Hunting sets the methods of application of this sub-section.
Subsection 2 Administrative culls Articles L427-4 to
L427-7
Article L427-4 Under the administrative supervision of the Préfet, the Mayor is responsible for taking the measures set out in
Article L. 2122-21 (9°) of the Code général des collectivités territoriales.
Article L427-5 Culls decided upon by Mayors under the terms of Article L. 2122-21 (9°) of the Code général des collectivités
territoriales are organised under the technical responsibility of the pest control officers.
Article L427-6 (Decree no. 2001-450 of 25 May 2001 Article 1 Official Journal of 27 May 2001) (Act no. 2005-157 of 23 February 2005 Article 155, Article 168 XI Official Journal of 24 February 2005)
Without prejudice to the provisions of Article L. 2122-21 (9°) of the Code Général des Collectivités Territoriales, hunts and general culls of pest animals in general or specific species are arranged whenever required, on the orders of the Préfet, following the opinion of the Director of Agriculture and Forestry of the department and the President of the département or inter-département federation of hunters. These hunts and culls may relate to animal species covered by a kill ratio as in Article L. 425-6. They may also be organised on the lands covered in 5° of Article L. 422-10.
Article L427-7 (Act no. 2003-698 of 30 July 2003 Article 7 Official Journal of 31 July 2003)
In communes located close to forestry plantations where crops are periodically threatened with destruction by wild boars, or those where professional breeders are periodically threatened by foxes, the list drawn up by the Préfet, who can delegate his or her powers to the Mayors concerned. Culls are organised under the supervision and technical responsibility of Pest Control Officers.
SECTION II Rights of the individual Articles L427-8 to
L427-9
Article L427-8 A Conseil d'Etat decree appoints the administrative authority competent to determine the species of noxious
animals and pests that the owner, holder or farmer has the right to exterminate throughout the year on their lands, and the conditions under which they may exercise this right.
Article L427-9 (Act no. 2005-157 of 23 February 2005 Article 168 XI Official Journal of 24 February 2005)
Without prejudice to the provisions set out in Article L. 427-8, every owner or farmer can evict or destroy, using firearms but not the snare or pit, wild animals causing damage to their property; however they are not authorised to cull wild boar, even in the départements where a kill ratio is applied under Section 3 of Chapter V of Title II of Book IV, and in which large game are subject to the ratio.
SECTION III Sale and transport Article L427-10
Article L427-10 A decree may regulate the putting on sale, sale, purchase, transport and peddling of animals classified as pests and
exterminated ex officio under the terms of this present Title.
CHAPTER VIII Criminal provisions Articles L428-1 to
L428-33
SECTION I Penalties Articles L428-1 to
L428-3
Subsection 1
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ENVIRONMENTAL CODE Territory Article L428-1
Article L428-1 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal 22 September 2000, in force on 1st January 2002)
A sentence of three months' imprisonment and a fine of 3750 euros are imposed for hunting on another person's property without their consent; if this land is adjacent to an inhabited house or one serving as a dwelling, and if it is enclosed by unbroken fencing creating a barrier with neighbouring properties.
If the offence is committed during the night, the prison sentence is raised to two years. The fine set for fifth level contraventions is imposed for hunting in State game reserves approved or established
under the provisions of Article L. 422-27. Note: Order 2000-914 of 18 September 2000 Article 5 III: This will be repealed from the entry into force of the
regulatory section of the Code de l'environnement, 3rd paragraph of Article L428-1.
Subsection 2 Hunting permit Articles L428-2 to
L428-3
Article L428-2 The sentences set out in Article 434-41 of the Code pénal are imposed on the act of hunting, either after being
refused the right to obtain and hold a hunting permit or the authorisation to hunt mentioned in Article L. 423-2 in application of Article L. 428-14, or after receiving notification of the suspension of the hunting permit or authorisation to hunt, as applied under Article L. 428-15.
Article L428-3 I. - The penalties provided for in Article 434-41 of the Code pénal are imposed on a hunter for refusing to hand over
his or her permit or authorisation to a representative of the authority responsible for enforcing the decision to withdraw the hunting permit or authorisation mentioned in Article L. 423-2, in application of Article L. 428-14, or a decision to suspend the hunting permit or authorisation mentioned in Article L. 423-2, in application of Article L. 428-15.
II. - The fine set for fifth level contraventions is imposed for hunting whilst prohibited or during the night under circumstances other than those cited in Articles L. 424-4 and L. 424-5.
III. - The fine set for fifth level contraventions is imposed for: 1° Hunting using prohibited weapons or apparatus or by other means than those cited in Articles L. 424-4 and L.
427-8; 2° Using drugs or bait designed to intoxicate or destroy game; 3° Being in possession or being found to be supplied with or carrying nets, weapons or other apparatus prohibited
for the purpose of hunting outside of the home. IV. - The fine set for fifth level contraventions is imposed for putting on sale, selling, purchasing, transporting and
peddling of game outside the periods authorised by the application of Article L. 424-8. V. - The fine set for fifth level contraventions is imposed in all seasons for knowingly putting on sale, selling,
transporting, peddling or purchasing game that has been killed using any prohibited weapon or apparatus. * Note: Order 2000-914 of 18 September 2000 Article 5 III: This will be repealed from the entry into force of the
regulatory section of the Code de l'environnement, II to V of Article L428-3 and the character I.* will be deleted.
SECTION II Aggravating circumstances Articles L428-4 to
L428-7-1
Article L428-4 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal 22 September 2000, in force on 1st January 2002) (Act no. 2005-157 of 23 February 2005 Article 173 I Official Journal of 24 February 2005)
I. A sentence of two years' imprisonment and a fine of 30,000 euros are imposed for hunting when the following circumstances are combined:
1 During the night or in prohibited periods; 2 On the land of another person or in a hunting reserve approved by the State or established under the provisions of
Article L. 422-27; 3 Using prohibited machines and instruments or means other than those authorised by articles L. 424-4 and L.
427-8, or using drugs and bait designed to intoxicate or destroy game; 4 When one of the hunters is carrying an overt or concealed weapon. II. The same sentences are imposed for putting on sale, selling, purchasing, transporting and peddling game
outside the periods authorised by the application of Article L. 424-8, when the game comes from acts of hunting committed in one of the circumstances described 1, 2 and 3 of I of the present article.
III. The same sentences are imposed for, in all seasons, knowingly putting on sale, selling, transporting, peddling or purchasing game that has been killed using any prohibited machines or apparatus when the game comes from acts of hunting committed in one of the circumstances described 1, 2 and 3 of I of the present article.
Article L428-5 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal 22 September 2000, in force on 1st January 2002)
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ENVIRONMENTAL CODE (Act no. 2005-157 of 23 February 2005 Article 173 I Official Journal of 24 February 2005)
I. - A sentence of one year's imprisonment and a fine of 15,000 euros is imposed as punishment for committing one of the following infringements:
1° Hunting on another person's property without their consent, if this land is adjacent to an inhabited house or one serving as a dwelling, and if it is enclosed by unbroken fencing creating a barrier with neighbouring properties;
2° Hunting in State hunting reserves approved or established under the provisions of Article L. 422-27; 3° Hunting during prohibited periods and at night time; 4° Hunting using prohibited machines or apparatus or by other means than those authorised by Articles L. 424-4
and L. 427-8; 5° Using drugs or bait designed to intoxicate or destroy game; 6° Being in possession or being found to be supplied with or carrying nets, machines or other apparatus prohibited
for the purpose of hunting outside of the home, with one of the following circumstances: a) Being disguised or masked; b) Having taken a false identity; c) Having used violence towards other people without causing any total leave from work or a total leave from work
of under eight days; d) Having made use of a vehicle of any sort to reach or escape from the location where the offence occurred. II. The same sentences are imposed, when the game comes from acts of hunting committed with one of the
circumstances described from a to d of I, for committing one of the following infringements: 1° Putting on sale, selling, purchasing, transporting and peddling game outside the periods authorised by the
application of Article L. 424-8; 2° In all seasons, knowingly putting on sale, selling, transporting, peddling or purchasing game that has been killed
using any prohibited machine or apparatus. III. The same sentences are imposed for committing, without aggravating circumstances but if it is a repeat offence
under the terms of article L. 428-6, one of the infringements described in I and II.
Article L428-6 When, within twelve months preceding an infraction sanctioned by one of the provisions of this Title, the guilty party
has been found to have committed an offence of the hunting regulations, this is considered to be a repeat offence.
Article L428-7 (Act no. 2001-602 of19 July 2000 Article 47 Official Journal 11 July 2001) (Act no. 2005-157 of 23 February 2005 Article 174 Official Journal of 24 February 2005)
When the offender has not satisfied previous convictions and has repeated the offence, a sentence of three months' imprisonment may be imposed for offences relating to:
1° Hunting on land belonging to another person, not respecting the provisions relating to hunting in forests covered by forestry regulations, on public authority property and in public establishments;
2° Failure to have a valid hunting permit or authorisation to hunt; 3° Regulatory provisions relating to the killing of all species of game and the destruction of their nests or eggs,
hunting in snow, dogs, waterfowl and migratory game, and the collection and transport of game; 4° Extermination of pest animals; 5° Game bag searches.
Article L428-8 The sentences provided for in the third paragraph of Article L. 428-1, and II to V of Article L. 428-3 and the offences
defined in Article L. 428-7 are always imposed to the maximum when committed by: 1° Rangers; 2° Technicians and representatives of the State and the National Forestry Commission, responsible for forestry; 3° The maritime hunting officials mentioned in Article L. 428-22. *Note: Order 2000-914 of 18 September 2000 Article 5 III: Will be repealed from the entry into force of the
regulatory section of the Code de l'environnement, the words: "third paragraph of Article L428-1" and the words: "the II to V of Article L428-3.*
Article L428-5-1 (Inserted by Law no. 2005-157 of 23 February 2005 Article 173 I Official Journal of 24 February 2005)
I. A sentence of four years' imprisonment and a fine of 60,000 euros are imposed for hunting when the following circumstances are combined:
1 During the night or in prohibited periods; 2 Having made use of a vehicle of any sort to reach or escape from the location where the offence occurred; 3 Carrying an overt or concealed weapon; 4 In a group II. The same sentences are imposed for putting on sale, selling, purchasing, transporting and peddling game
outside the periods authorised by the application of Article L. 424-8, when the game comes from the infringement described in I of the present article.
III. The same sentences are imposed for, in all seasons, knowingly putting on sale, selling, transporting, peddling or purchasing game that has been killed using any prohibited machines or apparatus when the game comes from the infringement described in I.
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ENVIRONMENTAL CODE Article L428-7-1 (Inserted by Law no. 2005-157 of 23 February 2005 Article 174 Official Journal of 24 February 2005)
I. Legal entities may be declared criminally responsible under the conditions provided for in article 121-2 of the Code pénal for the infringements defined in this title.
II. The sentences incurred by legal entities are: 1 A fine in accordance with the methods provided for by article 131-38 of the Code pénal; 2 The sentences mentioned in 8 and 9 of article 131-39 of the same Code.
SECTION III Associated and additional penalties Articles L428-9 to
L428-18
Subsection 1 Confiscation Articles L428-9 to
L428-11
Article L428-9 Any sentencing judgement may result, under any constraints that it may set, in the confiscation of arms, nets,
weapons and other hunting apparatus, as well as aircraft, automobiles and other vehicles used by the offenders. In addition, if called for, it orders the destruction of prohibited hunting equipment.
Article L428-10 If the arms, nets, weapons and other hunting apparatus and means of transport were not seized, the offender may
be sentenced to surrender them or to pay their value, in accordance with that set by the judgement.
Article L428-11 The items listed in Article L. 428-10 and abandoned by the unidentified offenders are seized and placed with the
office of the clerk of the appropriate court. Confiscation and, if called for, destruction are ordered following the drawing up of an official report.
Subsection 2 Hunting permit validation costs Articles L428-12 to
L428-13
Article L428-12 (Act no. 2003-698 of 30 July 2003 Article 26 Official Journal 31 July 2003) (Act no. 2005-157 of 23 February 2005 Article 174 Official Journal of 24 February 2005)
People who hunt without being holders of a current and duly validated hunting permit are sentenced to pay the statuary fees to the département hunting federation and the national hunting federation, as well as the hunting fees covered in Article L. 423-19. The President of the jurisdiction, after the sentence is pronounced, warns the sentenced person, if he or she is present, of the consequences that this sentencing brings to the payment of these contributions and fees.
The recovery of the amount to be paid is pursued even if the main sentence is ordered to be deferred, as set out in Article 734 of the Code de procédure pénale.
Article L428-13 The provisions of Article L. 428-12 also apply to people who hunt during prohibited periods.
Subsection 3 Hunting permit withdrawal and suspension Articles L428-14 to
L428-17
Article L428-14 In the event of being found guilty of an offence against hunting laws or for manslaughter or for accidental shooting
and injury that occurred whilst hunting or being engaged in the extermination of pest animals, the court can remove the right of the guilty party to retain or obtain a hunting permit or authorisation as mentioned in Article L. 423-2 or the authorisation mentioned in Article L. 423-3n, for a period not exceeding five years.
When the manslaughter or accidental shooting and injury covered in the previous paragraph is the result of a direct shot without the target being previously identified, the court may order the permanent withdrawal of the guilty party's hunting permit or authorisation mentioned in Article L. 423-3. If manslaughter or accidental shooting and injury are committed by a holder of a hunting authorisation described in Article L. 423-2, the court can remove the guilty party's right to obtain a hunting licence for a period that cannot exceed ten years.
Article L428-15 (Act no. 2005-157 of 23 February 2005 Article 174 Official Journal of 24 February 2005)
I. - The legal authorities may suspend a hunting permit or authorisation as mentioned in Article L. 423-2: 1° In the event of manslaughter or accidental shooting and injury that occurred whilst hunting or being engaged in
the extermination of pest animals;
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ENVIRONMENTAL CODE 2° When one of the following offences has been committed: a) Night-time hunting on another person's land using a motor vehicle; b) Hunting in approved game reserves and national parklands in which hunting is prohibited; c) Hunting in an enclosed area, whether or not adjacent to a dwelling, without the owner's consent; d) The killing of protected animal species; e) Violations of large game kill ratios; f) Menacing or violent acts committed against persons on the occasion of a hunting violation.
Article L428-16 In the cases mentioned in Article L. 428-15, a certified true copy of the official document reporting one of the
offences listed under the said Article is sent to the judge of the tribunal d'instance under whose jurisdiction the offence was committed.
The judge can order the immediate suspension of the hunting permit held by the person accused of the offence. The person concerned is notified of this suspension through administrative channels and is given a copy of the suspension order.
Article L428-17 This suspension only remains in force until a decision is handed down by the court under whose jurisdiction the
offence was committed. Nonetheless, the person accused of the offence may, at any moment prior to this decision, ask the judge of the tribunal d'instance to reinstate his or her permit provisionally.
Subsection 4 Driving licence suspension Article L428-18
Article L428-18 (Act no. 2005-157 of 23 February 2005 Article 174 Official Journal of 24 February 2005)
.Persons found guilty of the infringements defined in articles L. 428-1, L. 428-4, L. 428-5 and L. 428-5-1 also incur the suspension, for a maximum duration of three years, of their driving licence when the infringement has been committed with the use of a motor vehicle. This suspension may be limited to driving outside of professional activity requirements.
SECTION IV Investigation of offences and proceedings Articles L428-19 to
L428-33
Subsection 1 Investigation of offences Articles L428-19 to
L428-26
Article L428-19 The offences covered by this Title are substantiated either by statements and reports, or by witnesses in the place
of, or in support of statements and reports.
Article L428-20 (Act no. 2005-157 of 23 February 2005 Article 230 VII Official Journal of 24 February 2005, in force on 1st July 2005)
I. - Without prejudice to the provisions of Article L. 428-21, in addition to officers of the Judicial Police Department acting under the authority of the provisions of the Code pénal, the following persons are authorised to identify and investigate infringements of the provisions of this Title and the enactments for its application, insofar as they are sworn to this effect:
1° Officials representing the State, the National Hunting and Wildlife Office, the Higher Fishing Council, the Domaine National de Chambord, and the National Forestry and Parks Office commissioned to investigate forestry, hunting and fishing offences;
2° Rangers; 3° Forest Pest Control Officers. II. - The reports drawn up by these officials and officers have probative force unless proven otherwise. NB: Law no. 2005-157, article 230 VIII: "A decree sets the conditions of application of the present article (art. 230),
notably the methods of organisation and operation of the establishment, of conservation of the Château and of management of the forest."
These provisions take effect on the date upon which the decree provided for in article 230 (VIII) comes into force, and at the latest on 1st July 2005.
Article L428-21 Sworn private gamekeepers investigate, by means of official reports, infringements of the provisions of this Title
which are prejudicial to the holders of the hunting rights who employ them. Their reports have probative force unless proven otherwise. On the request of owners or holders of hunting rights, an agreement can be drawn up between them and the
département hunting federation of which they are members, that the specific patrolling of their land be carried out by the federation's development agents. The officers appointed by the federation to carry out this function are approved by the
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ENVIRONMENTAL CODE State representative in the département and are covered, within the boundaries of the lands they are patrolling, by the provisions described in the first two paragraphs of this Article.
Article L428-22 Have probative force unless proven otherwise, the reports drawn up for offences relating to maritime hunting
regulations, by: 1° Officers of the Judicial Police Department; 2° Officers, officials, representatives and gamekeepers authorised by the provisions in force to investigate
infringements against the maritime fishing and land based hunting rules; 3° If needs be, and under conditions set out by decree, maritime fishing wardens are commissioned for this purpose
by ministerial appointment and sworn before the tribunal d'instance of their place of residence.
Article L428-23 Have probative force unless proven otherwise, the reports drawn up by indirect taxation officers when, within the
limits of their respective responsibilities, these officers identify and investigate infringements of the provisions of Articles L. 424-8 and L. 424-12.
Article L428-24 The Minister for Hunting commissions officers working for the National Hunting and Wildlife Office to carry out the
duties of water and forestry technical officers.
Article L428-25 In order not to be considered null and void, reports must be sent directly to the Procureur de la République within
three days following the closure of the investigation. In terms of maritime hunting, the competent Procureur de la République is the Procureur in closest proximity to the
tribunal de grande instance of the territory in which is located the commune nearest to where the offence was committed.
Article L428-26 A bonus per conviction not exceeding the fine imposed and received is granted to rangers and gendarmes making
arrests for offences listed under this Title.
Subsection 2 Identification of offences Articles L428-27 to
L428-32
Article L428-27 The search in domiciles for game can only be performed on the premises of innkeepers, food stores, and premises
open to the public.
Article L428-28 In the case covered by Article L. 424-13, the search for mountain game can also be performed at the homes of all
traders of living or dead game, whether they be wholesalers, cash-and-carry warehouse owners or retailers, hoteliers, restaurant owners, canteen managers or directors, butchers, delicatessen sausage makers, potted meat manufacturers, and in general, anyone who is likely to hold stocks of meat.
Article L428-29 (Act no. 2003-591 of 2 July 2003 Article 31 III 14° Official Journal of 3 July 2003)
Outside of their homes, hunters and people accompanying them are obliged to open for inspection their game bags and other bags upon request by any of the following officials: officers of the Judicial Police Department, police and gendarmerie officers not members of the Judicial Police Department, officials mentioned in 1° and 3° of I of Article L. 428-20, as well as gamekeepers of the département hunting federations mentioned in the third paragraph of Article L. 428-21, under the terms provided for in this Article.
This form of check can only be carried out in the areas where the aforementioned visiting officers and officials can issue a report in relation to hunting.
Article L428-30 The police officers, officials and gamekeepers mentioned in Article L. 428-22, excluding private non-commissioned
wardens, can enter, for the purpose of investigating offences perpetuated during maritime hunting, all maritime vessels and all installations located in the public maritime domain and used for the purpose of hunting from a concealed location.
Article L428-31 The officials mentioned in Article L. 428-20 can confiscate the object causing the offence, weapons and also any
apparatus or vehicles listed in Article L. 428-9. In the event of an infringement of Articles L. 424-8 to L. 424-13 and the regulatory provisions relating to the
transport and sale of game, the game is immediately confiscated and delivered to the nearest charitable establishment.
Article L428-32 (Act no. 2005-157 of 23 February 2005 Article 174 Official Journal of 24 February 2005)
The only people authorised to arrest those who commit the infringements defined in the present chapter are:
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ENVIRONMENTAL CODE 1 Judiciary police officers and officials under the conditions provided for by the Code de procédure pénale; 2 In cases of flagrante delicto, the officers mentioned in 1 and 2 of article L. 428-20, subject to the arrested persons
being taken before the nearest judiciary police officer.
Subsection 3 Proceedings Article L428-33
Article L428-33 (Act no. 2005-157 of 23 February 2005 Article 174 Official Journal of 24 February 2005)
In the case of hunting on another person's land without the owner's consent, proceedings cannot be instigated by the Public Prosecutors Office, without a complaint being filed by the injured party, unless the offence was committed in an enclosed area, in accordance with Article L. 424-3, and attached to a dwelling or on land where the produce has not yet been harvested.
CHAPTER IX Specific provisions relating to the départements of Bas-Rhin, Haut-Rhin and Moselle Articles L429-2 to
L429-40
SECTION I Hunting administration by commune-level proclamation Articles L429-2 to
L429-18
Subsection 1 Commune-level proclamation Articles L429-2 to
L429-6
Article L429-2 The right to hunt on lands or water-covered areas is administered by the commune for and on behalf of the owners.
Article L429-3 The provisions of Article L. 429-2 do not apply to: 1° Military property; 2° The French railway network and the Société nationale des chemins de fer français (French Railway Company)
holdings; 3° State forests; 4° Forests shared between the State and other owners; 5° Lands which are enclosed by unbroken fencing creating a barrier with neighbouring properties.
Article L429-4 The owner may reserve the right to hunt on land up to twenty-five hectares with at least one tenant, on lakes and
ponds with a surface of at least five hectares. Railways, roads and waterways do not interrupt the continuity of a holding, unless facilities hinder the passage of
large game. The existence of such facilities as described in the previous paragraph at 21 June 1996 is not opposable to owners
who exercised their right prior to this date.
Article L429-5 A commune-level Hunting Consultative Commission, representing the various parties involved, is placed under the
chairmanship of the Mayor. If necessary, an inter-commune commission can be set up.
Article L429-6 Owners who wish to reserve the right to hunt under the terms of Article L. 429-4 or who wish to benefit from the right
to priority to rent out hunting rights on fenced lands under the terms of Article L. 429-17, notify the Mayor by means of a written declaration within ten days of the date of publication of the decision covered in Article L. 429-13.
When the reserved or fenced areas are located over several commune areas, the declaration is addressed to the Mayor of each of these communes.
Subsection 2 Use of hunting rights Articles L429-7 to
L429-16
Article L429-7 (Act no. 2001-602 of 9 July 2001 Article 63 II Official Journal of 11 July 2001)
Subject to the provisions of Article L. 2541-12 of the Code général des collectivités territoriales, hunting on commune proclamation is leased for a period of nine years by public adjudication. The lessee in situ for at least three years benefits from a priority right to renew the lease at the end of the lease.
Nevertheless, following the opinion of the commune or inter-commune consultative hunting commission, the lease can be renewed for an equal duration, for the current lessee in situ for at least three years before the current lease expires. The rental amount may not be less than that calculated on the basis of the average lease per hectare calculated
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ENVIRONMENTAL CODE at the time that lots with comparable hunting characteristics and located within the commune or département were adjudicated. The rental amount set by agreement is, if necessary, increased accordingly. Failure to accept this increase by the lessee is considered to be refusal of the agreement. In this case the lot in question is offered for lease under the terms set in the first paragraph of this Article.
When the lessee in situ has not made it known that he or she intends to request the renewal of the lease, hunting rights may also be leased out, following the opinion of the commune or inter-commune consultative hunting commission for a nine year period, by means of a call for tender.
The proclamation may be divided into several lots with a surface area of at least two hundred hectares. II. - The lease takes place under the terms of a regulation, known as the standard specifications, drawn up by the
Préfet, following consultation of the representative bodies of the communes, the hunters, the farmers and farm and forestry owners.
More particularly, this regulation sets the technical hunting management rules, the role, composition and operating methods of the commune or inter-commune consultative hunting commission, and the lease revision methods on request from the Mayor.
Article L429-8 Each commune may associate itself with one or more neighbouring communes to constitute one or more
inter-commune hunting lots, forming a more homogenous or easily operable territory. In this case, an inter-commune consultative hunting commission is set up under the chairmanship of the Mayor of
one of the communes.
Article L429-9 I. - The following may be lessees of a commune or inter-commune hunting ground: 1° Private individuals whose main residence meets the distance conditions set in relation to the hunting ground.
The standard specifications mentioned in Article L. 429-7 define these distance terms in the interest of rational hunting management. However, these terms do not apply to lessees in place on 21 June 1996,
2° Duly registered or listed legal entities, where at least 50% of the members fulfil this residential condition. II. - The conditions mentioned in 1° and 2° of I must apply throughout the hunting lease; failure to comply with this
will lead to the termination of the lease in full legality.
Article L429-10 The choice of adjudication date or the date of receipt of offers is set at the expiry of the ten-day period set in Article
L. 429-6. The date of adjudication or the date of reception of offers is announced at least six weeks in advance.
Article L429-11 The revenue from the hunting lease is paid to the commune. In the event of creating inter-commune lots, the revenue from the lease of these lots is divided on a pro rata basis to
the areas contributed by each commune.
Article L429-12 The distribution of hunting lease revenue between the various owners takes place in proportion to the cadastral
surface area of the ground included in the lot in question. Sums that have not been withdrawn within a deadline of two years from the publication of the report indicating the
amount awarded to each owner, are awarded to the commune.
Article L429-13 Hunting lease revenue reverts to the commune when this has been expressly decided by at least two thirds of the
owners, representing at least two thirds of the land area on the commune territory and subject to the provisions of this section.
The decision relating to the abandoning of hunting lease revenue to the commune is taken by the double majority required in the previous paragraph, either within the framework of an owners' meeting or within the framework of a written consultation of the owners.
The decision on whether or not to abandon the hunt lease revenue is published. It is valid throughout the hunting ground lease period.
Article L429-14 When the decision provided for in Article L. 429-13 has been taken, the owners who have reserved hunting rights in
accordance with the provisions of Article L. 429-4 are expected to pay the commune a contribution in proportion to the cadastral extent of the hunting ground they have reserved for themselves. This contribution is added to the revenue from the lease of the commune proclaimed hunting ground.
Article L429-15 Communes that own land satisfying the terms set out in Article L. 429-4 in another commune are not permitted to
take the decision mentioned in Article L. 429-13. In the event that such a decision has been taken, they are not expected to pay the other commune the contribution
set out in Article L. 429-14.
Article L429-16
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ENVIRONMENTAL CODE By public proclamation, the Mayor sets the date on which the parties concerned will take the decision mentioned in
Article L. 429-13.
Subsection 3 Enclaves Article L429-17
Article L429-17 When land areas of less than twenty-five hectares are enclaved, whether totally or the main part, within the lands
subject to the reserve covered in Article L. 429-4, the owner of the most extensive reserved hunting ground has priority to rent hunting rights on the enclaved land.
This lease is granted, on request, throughout the lease period, against an indemnity calculated in proportion to the price of hunting ground leasing on commune proclamation.
If the owner does not declare his or her intention to use this right within the deadline set in Article L. 429-6, by sending a written declaration to the Mayor, the enclaved land remains within the commune hunting lot.
Subsection 4 Miscellaneous provisions Article L429-18
Article L429-18 A ruling by the Minister for Hunting sets the provisions of application of this section.
SECTION II Hunting Articles L429-19 to
L429-22
Subsection 1 Hunting times Article L429-19
Article L429-19 (Act no. 2003-698 of 30 July 2003 Article 33 Official Journal of 31 July 2003)
Night extends from the time starting one hour after sunset and ends one hour before sunrise. Notwithstanding Article L. 424-4 and during the period when it is open season for wild boar, the administrative
authority may authorise, under the terms that it will set, night hunting, whether from hides or by flushing, without the aid of light sources.
Subsection 3 Hunting methods and means Article L429-20
Article L429-20 The administrative authority may prohibit all hunting methods and equipment that are not appropriate to regular
hunting practices.
Subsection 4 Sale and transport of game Articles L429-21 to
L429-22
Article L429-21 It is prohibited to put on sale, sell, buy, transport or peddle game during periods in which hunting is not authorised.
This prohibition comes into force as from the fifteenth day following closure. This provision does not apply to the sale or transport of game authorised by the administrative authority.
Article L429-22 The prohibitions mentioned in Article L. 429-21 do not apply to the sale of certain species of game kept in
refrigeration, as long as this takes place under control and in compliance with the measures laid down by the Minister for Hunting. The costs of control are to be borne by the owners of the refrigeration plants and may be paid in the form of a duty subject to pricing terms.
SECTION III Compensation for game-related damage Articles L429-23 to
L429-32
Subsection 1 General arrangements Articles L429-23 to
L429-26
Article L429-23 When grounds, where hunting rights are not held by the owner, have been damaged by wild boar, deer, elk, fallow
deer, roebuck, pheasant, hares or rabbits, the holder of hunting rights is obliged to compensate the damage that the animals have caused to the revenue from crops that have already been cut but have not yet been gathered in.
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ENVIRONMENTAL CODE Article L429-24
The responsibility of the holder of hunting rights replaces that of the owner if: a) The latter is legally deprived of his or her right to hunt, b) Owing to the location of the ground, which can only be used in common with the hunting rights of another ground,
he or she has leased out his or her hunting rights to the owner of this other ground.
Article L429-25 Damage caused to gardens, orchards, nursery gardens and isolated trees cannot give rise to compensation if the
appropriate protective measures have not been taken to avoid damage.
Article L429-26 For the compensation of damage caused by game, with the exception of that committed by wild boar, the hunting
lessee takes the place of the commune that granted the hunting lease, in compliance with Article L. 429-7. The commune may nevertheless be held responsible for compensating damage committed by animals other than
wild boar, in the event that the hunting lessee and the guarantor are insolvent, unless it instigates proceedings against the latter parties.
Subsection 2 Specific provisions for compensating damage caused by wild boar Articles L429-27 to
L429-32
Article L429-27 (Act no. 2005-157 of 23 February 2005 Article 175 Official Journal of 24 February 2005)
In each of the départements of Bas-Rhin, Haut-Rhin and Moselle, there is constituted a département fund for the compensation of wild boar related damage, given the status of a legal entity. The purpose of the département funds for the compensation of wild boar related damage is to compensate farmers for the damage caused to crops by wild boars. They can conduct and impose preventive actions. Each fund is made up of the holders of hunting rights defined below:
1° All of the domain and commune hunt lessees, 2° All of the owners that have reserved the right to hunt on the territories that they own, in compliance with Article L.
429-4; 3° The National Forestry Commission for lots managed as state forests by the granting of licenses or placing as
reserve.
Article L429-28 (Act no. 2005-157 of 23 February 2005 Article 175 Official Journal of 24 February 2005)
The département funds for the compensation of wild boar related damage agree to draw up template Articles. These template Articles are approved by rulings of the Préfets of Bas-Rhin, Haut Rhin and Moselle. In the event of disagreement between the Préfets and the département funds, the template Articles are set by a Conseil d'Etat decree. Each fund then brings together its members for a general assembly to adopt the template Articles.
General Assembly decisions are taken by a majority vote of the members present and represented. Each member of a département fund has a minimum of one vote, irrespective of the surface area, and a maximum of ten votes. Votes are distributed as follows: one per full section of 100 wooded hectares, and one per full section of 200 non-wooded hectares, for the cumulative surface area of their hunting territory.
By wooded surface area is meant that of forests, copses, groves, hedgerows and reed-marshes, added together and certified by the commune for each commune proclamation.
Article L429-29 (Act no. 2005-157 of 23 February 2005 Article 175 Official Journal of 24 February 2005)
Membership of département funds for the compensation of wild boar related damage is compulsory for any person designated in 1, 2 and 3 of article L. 429-27.
Article L429-30 (Act no. 2005-157 of 23 February 2005 Article 175 Official Journal of 24 February 2005)
The members of the département funds for the compensation of wild boar related damage designated in articles L. 429-27 and L. 429-29 pay, before 1st April each year, to the treasury of each département fund of which they are members, a contribution fixed by their general assembly, not exceeding 12% of the annual hunting rent or the contribution defined in Article L. 429-14.
Any sum due to the département funds and not paid on the due date will be subject to interest payments equal to one and a half times the legal interest rate.
Article L429-31 (Act no. 2005-157 of 23 February 2005 Article 175 Official Journal of 24 February 2005)
In the event that the resources of a year resulting from the provisions of article L. 429-30 and from the reserve account are not sufficient to cover the expenditure of a département fund for compensation, its general assembly sets one or more of the following extra contributions for that year:
a) A complementary contribution due by the members of the département fund, proportionally to the wooded surface area of their hunting territory;
b) A complementary contribution determined by hunting zone in the département, due by the members of the
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ENVIRONMENTAL CODE département fund for the zone of which they are part, proportionally to the total surface area of their hunting territory, or proportionally to the wooded surface area;
c) A single personal contribution due by all hunters on the first day that they hunt wild boar in the département. Conversely, in the event that the resources of a year made up of the payments provided for in article L. 429-30
should exceed the expenditure of a département fund, the surplus will be paid into the reserve account of this département.
When, at the end of the financial year, the reserve account exceeds the average amount of expenditure over the previous three financial years, the surplus is to be deducted from the sums payable the following year, under the terms of article L. 429-30
Article L429-32 (Act no. 2005-157 of 23 February 2005 Article 175 Official Journal of 24 February 2005)
Any request for compensation for damage caused by wild boar is sent, as soon as the damage is noted, to the département fund, which delegates an assessor to examine the damaged farming crops in the presence of the requester. The assessor immediately gives his or her conclusions on the attribution of the damage to wild boar, the imputability of the damage, the surface area affected by the damage, the percentage of this surface area affected and the likely loss of harvest.
Failing agreement on the conclusions of the assessor, the farmer or the département fund, within eight days following the date of assessment and on penalty of preclusion, refers to the district court of the place where the damaged crops are located, for a request for the appointment of an expert.
In the event of disagreement on the conclusions of this legal expert, the farmer or the département fund, within eight days following the date of the expert's report and on penalty of preclusion, refers to this same court for a request to set compensation.
No request for assessment or legal expertise may be taken into consideration after the harvesting of the damaged crops.
SECTION IV Penalties Articles L429-33 to
L429-40
Subsection 1 Sentences Articles L429-33 to
L429-37
Article L429-33 It is prohibited to pursue wounded game or to remove game that has fallen on another person's hunting ground,
without that person's permission.
Article L429-34 Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January
2002) Anyone found hunting on land where they do not have hunting rights is punishable by three months' imprisonment
and a fine of 3750 euros. If the guilty party is a relative of the person who does have hunting rights, then proceedings will only take place if a
complaint is filed. A filed complaint may be withdrawn.
Article L429-35 For the violation defined in Article L. 429-34, the sentences can be doubled depending on whether firearms or dogs
were used, or snares, nets, traps or other implements, or if the violation has been committed in prohibited weather conditions, or in the forests, or during the night, or by a group of people.
Article L429-36 If the party guilty of the violation described in Article L. 429-34 indulges in prohibited hunting on a professional
basis, he or she will be punishable by three months' imprisonment. Furthermore, he or she may be deprived of his or her civic rights and be kept under police surveillance.
Article L429-37 Article L. 428-15 applies to the violations covered by the said Article as defined by the laws relating to hunting and
protection of the environment in force in the départements of Bas-Rhin, Haut-Rhin and Moselle.
Subsection 2 Repeat offences Article L429-38
Article L429-38 A repeat offence in the sense of this Chapter occurs when the guilty party has already been found guilty of a
violation under this Chapter within two years prior to this conviction.
Subsection 3
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ENVIRONMENTAL CODE Accessory and additional sentences Articles L429-39 to
L429-40
Article L429-39 The guilty party's gun, hunting equipment and dogs that were with him or her at the time of the offence as defined in
Article L. 429-34 are confiscated, as well as any snares, traps or other implements, whether they belong to the guilty party or not.
Article L429-40 The court can pronounce the confiscation of the prohibited implements under Article L. 429-20, whether they belong
to the guilty party or not.
TITLE III Freshwater fishing and management of fish-farming resources Articles L431-1 to
L430-1
Article L430-1 The conservation of water environments and the protection of fish farming heritage are in the general public interest. The protection of fish farming heritage implies a balanced management of the fishing resources, the main
constituent of which is fishing, a social and economic activity.
CHAPTER I Scope Articles L431-1 to
L431-8
SECTION I General provisions Articles L431-1 to
L431-5
Article L431-1 Fishermen, who fish in waters as defined in Article L. 431-3, for whatever reason and in whatever manner, in
particular for leisure or business purposes, are subject to the provisions of this Title.
Article L431-2 The provisions of this Title relating to fish also apply to shellfish, frogs and spawn.
Article L431-3 Subject to the provisions of Articles L. 431-6 and L. 431-7, the provisions in this Title apply to all the water courses,
canals, streams, as well as to the lakes with which they join. In water courses and canals leading to the sea, the provisions of this Title apply upstream of the salt limit in the
water.
Article L431-4 Lake draining operations aimed exclusively at collecting fish do not constitute a joining in the sense of Article L.
431-3.
Article L431-5 Owners of lakes other than those mentioned in paragraph 1 of Article L. 431-3 may request for these lakes the
application of the provisions of this Title for a minimum duration of five consecutive years, under the terms set by a Conseil d'Etat decree.
SECTION II Fish farming Articles L431-6 to
L431-8
Article L431-6 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Order no. 2005-805 of 18 July 2005 Article 7 Official Journal of 19 July 2005)
A fish farm is, within the meaning assigned by Title I of Book II and Title III of Book IV, an operation whose purpose is breeding fish for consumption, re-stocking, ornamentation, scientific or experimental purposes, or for the promotion of tourism. In the latter case, the capture of fish using rod and line in lakes is permitted.
NB: Order no. 2005-805 2005-07-18 Article 22: I. - A decree relating to the nomenclature provided for in article L. 214-2 of the Code de l'Environnement will be
made within a period of one year following the publication of the present Order. II. - Article 7 of the present Order will come into force on the same date.
Article L431-7 (Order no. 2005-805 of 18 July 2005 Article 8 Official Journal of 19 July 2005)
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ENVIRONMENTAL CODE With the exception of Articles L. 432-2, L. 432-10, L. 432-11 and L. 432-12, the provisions of this Title do not apply
to fish farms lawfully authorised and declared and to lakes existing on 30 June 1984, established by diverting water or by damming and equipped with permanent facilities inhibiting the free travel of fish between these lakes and the waters with which they connect:
1° Either if they have been created in accordance with a title-based right entitling the interception of fish travelling through,
2° Or they have been created by damming with a view towards fish farming before 15 April 1829, across a state owned water course that has not been classified under the fish ladder scheme mentioned in Article L. 432-7, and do not appear in the list mentioned in Article L. 432-6 ;
3° Or if they result from a concession or administrative authorisation, up to the end of the period for which the concession or authorisation has been granted. Holders of these authorisations or concessions can request renewal in accordance with the provisions of Articles L. 214-2 to L. 214-4.
Article L431-8 As from 1st January 1992 only those people holding rights, concessions or authorisations and having declared
themselves to the administrative authority may benefit from the provisions of Article L. 431-1.
CHAPTER II Conservation of water environments and protection of the fish-farming heritage Articles L432-1 to
L432-12
SECTION I General obligations Article L432-1
Article L432-1 Any owner of fishing rights, or his or her representative, is obliged to take part in protection of the fishing heritage
and the water environment. For this reason he or she must not harm them and, if the need should arise, should carry out maintenance work on the banks and the bed of the water course, in order to maintain aquatic life.
With the owner's permission, this obligation may be handled by an approved fishing and fish farming association, or by the département Federation of Approved Fishing and Fish Farming Associations which, in return, has free fishing rights throughout the time it fulfils this obligation. This duration can be set contractually.
In the event of failure to respect this obligation to participate in protecting the fishing heritage and water environment, the required work may be carried out ex officio by the authorities at the owner's expense, or, if the latter is excused from this obligation, at the expense of the association or federation that has taken it on.
SECTION II Protection of farmed fish and their habitat Articles L432-2 to
L432-4
Article L432-2 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
The act of discharging, tipping or letting flow into the waters mentioned in Article. 431-3, whether directly or indirectly, substances the action or reaction of which has killed fish or damaged their nutrition, reproduction or food value, is punishable by two years' imprisonment and a fine of 18 000 euros.
Furthermore, the court may order the publication of an extract of the sentence in two or more newspapers at the guilty party's expense.
Article L432-3 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Repealed by Order no. 2005-805 of 18 July 2005 Article 22 II subject to reserves Official Journal of 19 July 2005)
When they are likely to destroy spawning grounds, nursery zones, feeding areas or food reserves for aquatic wildlife, the installation or improvement of structures, as well as any work on the river bed are subject to authorisation. Failure to have an authorisation is punishable by a fine of 18 000 euros.
The authorisation issued under the terms of this Article sets compensatory measures aimed at restoring the aquatic environment to its original condition
NB: Order no. 2005-805 of 18 July 2005, Article 22 II: Article L. 432-3 is repealed on the date of publication of the decree provided for in I of the present Title.
Article L432-4 In the event a conviction for a violation of the provisions of Articles L. 432-2 and L. 432-3, the court will, if
necessary, set the measures to be taken to terminate the violation or avoid any repeat offence and the time limit within which these measures must be fulfilled, as well as a periodic penalty payment as defined in Article L. 437-20.
SECTION III Obligations relating to constructions Articles L432-5 to
L432-9
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ENVIRONMENTAL CODE Article L432-5
Any structure to be built in a riverbed must include devices ensuring that a minimum flow is guaranteed over this bed to sustain life, circulation and the reproduction of the species that populate the waters at the time the structure is built, as well, should the need arise, as devices to prevent fish entering into inlet or escape ducts.
This minimal flow must not be less than one tenth of the water course module in line with the structure, corresponding to the average inter-annual throughput, assessed on the basis of available data relating to a minimum period of five years, or on the throughput immediately upstream of the structure, if this is less.
Nevertheless, for water courses or sections of water courses where the module is higher than 80 cubic metres per second, decrees approved by the Conseil d'Etat may, for each one, set a lower limit for this minimal throughput, which should not be lower than one twentieth of the module.
The operator of the construction is obliged to ensure the operation and maintenance of the devices guaranteeing the minimal flow through the river bed as defined in the previous paragraphs.
The provisions set out in the previous paragraphs extend to all structures existing on 30 June 1984, by progressive reduction of the difference in relation to the current situation. These provisions likewise apply to all renewals of licences and permits for these structures.
As of 30 June 1987, their minimal throughput, unless this is technically impossible owing to the design, cannot be less than one quarter of the values set in the second and third paragraphs of this Article.
The application of the provisions of this Article does not give rise to any indemnity. The provisions of this Article do not apply to the Rhine or the Rhône, due to the International status of these two
rivers.
Article L432-6 In water courses or parts of water courses and canals that are listed by decree, following the opinion by general
councils submitted within a time limit of six months, all structures must include devices to ensure the passage of migrating fish. The operator of the structure is obliged to ensure the operation and maintenance of these devices.
Existing structures must be brought into conformity, without compensation, with the provisions of this Article within a time limit of five years from the publication date of a list of migrating species per basin or sub-basin, set by the Minister for Fresh Water Fishing and, if necessary, the Minister for the Sea.
Article L432-7 The classification of water courses, parts of water courses and canals which took place under the terms of the fish
ladders prior to 1 January 1986 is considered as classification under the first paragraph of Article L. 432-6.
Article L432-8 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
Failure to respect the provisions of Articles L. 432-5 and L. 432-6 is punishable by a fine of 12 000 euros. When a person is found guilty under the terms of this Article, the court may decide that, failing execution within the
time limits it sets, measures will be taken for the purposes described in the abovementioned Articles, leading to the payment of a periodic penalty payment as defined in Article L. 437-20.
Article L432-9 (Order No. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Repealed by Order no. 2005-805 of 18 July 2005 Article 22 II subject to reserves Official Journal of 19 July 2005)
The draining of water areas, whether mentioned or not in Article L. 431-3 is subject to authorisation under the terms of this Article. These authorisations determine the schedule for the operation and the destination of the fish.
The act of draining without the authorisation mentioned in the previous paragraph is punishable by a fine of 12 000 euros.
NB: Order no. 2005-805 of 18 July 2005, Article 22 II: Article L. 432-9 is repealed on the date of publication of the decree provided for in I of the present Title.
SECTION IV Population control Articles L432-10 to
L432-12
Article L432-10 (Order No. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
The following are punishable by a fine of 9000 euros: 1° Introducing fish belonging to species that are likely to cause biological unbalances, the list of which is set by
decree, into the waters mentioned in this Title, 2° Introducing fish that do not already exist into waters mentioned in this Title without permission; the list of fish
represented is set by the Minister for Fresh Water Fishing, 3° Introducing fish of the following categories into water classified as primary category under the terms of 10° in
Article L. 436-5: pike, perch, zander and black-bass; however this provision does not apply to Lakes Geneva, Annecy or Bourget.
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ENVIRONMENTAL CODE Article L432-11
The transport of fish belonging to the species mentioned in 1° of Article L. 432-10 is prohibited without an authorisation issued under the terms set by a Conseil d'Etat decree.
Article L432-12 (Order No. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
The introduction of fish that do not come from approved fish farms or breeders, under the terms set by a Conseil d'Etat decree, into the waters mentioned in this Title, is punishable by a fine of 9000 euros.
CHAPTER III Management of aquatic environments and fish-farming resources Articles L433-1 to
L433-3
SECTION I Guidelines for water basins Article L433-1
Article L433-1 In each hydrographic basin, a commission made up of fishing managers, qualified people, neighbourhood
representatives, local authorities, the administrations concerned and environmental protection associations, is responsible for proposing the guidelines for protecting and managing the aquatic environments in the basin and giving its opinion on related questions. These guidelines are decided upon by the Minister for Fresh Water Fishing.
A decree sets the composition and the operating rules for the basin commission.
SECTION II Département fishing plan Article L433-2
Article L433-2 The département federation of approved fishing associations and the approved association of professional
fishermen take part in drawing up the département fishing plan in compliance with the basin guidelines defined by the Minister for Fresh Water Fishing.
SECTION III Obligation of management Article L433-3
Article L433-3 The exercise of fishing rights carries with it the obligation to manage fishing resources. This carries with it the
drawing up of a management plan. Failure to respect this obligation may result in measures being taken ex officio by the administration, at the expense of the individual or legal entity holding fishing rights.
CHAPTER IV Fishermen's organisations Articles L434-1 to
L434-6
SECTION I Higher Fishing Council Articles L434-1 to
L434-2
Article L434-1 The Higher Fishing Council is a public establishment to which is allocated the revenue from fishing taxes. It uses its
funds to improve and monitor the national fishing domain, in particular through interventions, creations, research, studies and teaching in favour of fishing and the protection of fishing heritage.
Furthermore, the Higher Fishing Council is a consultative body to the Minister for Fresh Water Fishing.
Article L434-2 The commissioned agents mentioned in 1° of Article L. 437-1 are managed by the Higher Fishing Council. Their
purpose in normal working circumstances is to be available to the département federations of approved fishing and fish farming associations.
SECTION II Organisation of leisure fishing Articles L434-3 to
L434-5
Article L434-3 The approved fishing and fish farming associations contribute to monitoring fishing, using the fishing rights they
hold, take part in protecting fishing and aquatic environment heritage and carry out fish farming management operations. The approved associations of amateur implement and net fishermen in public domain waters also have the same
competences for the fishing parcels where their members are permitted to fish. In each département the approved fishing and fish farming associations and the approved associations of amateur
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ENVIRONMENTAL CODE implement and net fishermen in public domain waters are grouped by law into a département federation of approved fishing and fish farming associations.
Article L434-4 The département federation of approved fishing and fish farming associations are considered to be of public utility.
They are expected to improve and monitor the département fishing domain. For this reason, they take part in organising the monitoring of fishing, the protection of fishing heritage and aquatic
environments. They coordinate the actions of approved fishing and fish farming associations. In the interest of the members of approved fishing and fish farming associations in the département they operate the fishing rights that they hold. They carry out information and education actions on the topic of protecting aquatic environments.
Furthermore, they can be entrusted with any other assignment in the general public interest that relates to their activities.
The constitution of federations grouping together the approved associations from several départements can be authorised by the Ministry for Fresh Water Fishing.
Article L434-5 The conditions for approving the Articles of federations, the methods for designating their managing bodies, the
means of checking the administration of the federations and associations as well as the conditions for when the administration can replace the federations in the event of failure are set by a Conseil d'Etat decree.
SECTION III Organisation of professional fishing Article L434-6
Article L434-6 The approved associations of professional fishermen group together, within the département or inter-département
framework, professional fishermen working full or part time. These associations contribute to monitoring fishing and take part in protecting fishing heritage and aquatic
environments. The conditions for joining these associations, the methods for approving their Articles as well as checking
administration are set by a Conseil d'Etat decree.
CHAPTER V Fishing rights Articles L435-1 to
L435-9
SECTION I State fishing rights Articles L435-1 to
L435-3
Article L435-1 I. - Fishing rights belong to the State and are used to its advantage: 1° In the public sector as defined in the 1st Article of the Code du domaine public fluvial et de la navigation
intérieure, with the exception of cases in which fishing rights belong to a private individual in accordance with a title-based right,
2° In freshwater parts of non-State owned water courses and canals that lead to the sea, which are located within the limits of the merchant marine register prior to 8 November and 28 December 1926. These parts are set by decree.
II. - A Conseil d'Etat decree sets the operating conditions by adjudication, leasing or licensing, of the State fishing rights, and the methods of managing state-owned fishing resources and the water courses and canals mentioned in 1° and 2° of I. In particular it sets the list of civil servants, agents and members of their family that can directly or indirectly take part in the rental of these fishing rights.
Article L435-2 The provisions of Article 313-6 of the Code pénal apply to adjudications of State fishing rights. Any adjudication pronounced in favour of a person found guilty under the terms of these said provisions is declared
null and void.
Article L435-3 Disputes between the administration and the adjudicators relating to the interpretation and fulfilment of the lease
terms and adjudications, and all those that arise between the administration or its co-contractors and third parties on the subject of their rights or properties will be brought before the tribunal de grande instance.
SECTION II Fishing rights of local residents Articles L435-4 to
L435-5
Article L435-4 In water courses and canals other than those described in Article L. 435-1, neighbouring owners have fishing rights
on their side, up to the middle of the water course or canal, subject to other rights that might be established in their freeholds.
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ENVIRONMENTAL CODE Regarding water areas other than those covered in Article L. 435-1, fishing rights belong to their owner.
Article L435-5 When the neighbouring owners of the waters mentioned in Article L. 435-4 benefit from State grants they have
requested for the upgrading or improvement of banks and bases, then in exchange, fishing rights are free of charge for a maximum of twenty years, either for an approved fishing and fish farming association designated by the administration, or by the département Federation of Approved Fishing and Fish Farming Associations.
However, when a grant is paid to a local authority or a union of local authorities following a declaration of public utility, the owner may repay that part of the grant corresponding with work carried out on his or her land. In this case, the provisions of this Article do not apply.
For the application of this Article, the length of time during which the association or federation can fish free of charge depends on the proportion of the work carried out that has been financed by grants from public funds.
The association or federation that exercises free fishing rights under the terms of this Article must satisfy the obligations defined in Articles L. 432-1 and L. 433-3.
During the period that an association or federation is exercising free fishing rights, the owner retains the right to fish for himself or herself and his or her partner, children or parents.
The means of applying this Article are defined by a Conseil d'Etat decree.
SECTION III Right of way Articles L435-6 to
L435-9
Article L435-6 The exercise of fishing rights brings with it a right of way that must be used, whenever possible, by following the
banks of the river, and causing the least possible damage. The method by which this right of way is used can be the subject of an agreement with the neighbouring owner.
Article L435-7 When an association or federation as defined in Article L. 434-3 and L. 434-5 exercises free fishing rights, it is
obliged to repair any damage that the neighbouring owner or his or her representative might suffer through the exercise of this right.
Article L435-8 Article L. 215-21 applies to work carried out and the measures taken under the terms of Articles L. 432-1, L. 435-3
and L. 435-5.
Article L435-9 Any owner, lessee, farmer or holder of a genuine right, neighbour to a state owned water course or state owned
lake, is obliged to hold a free space of 3.25 metres wide along the banks of it for fishermen. When fishing and maintenance and monitoring of water courses and lakes requirements permit, the Ministers for
Fresh Water Fishing and Management of the State Inland Waterways, or the Préfet by delegation, may reduce this 3.25 metres to 1.50 metres.
The length of water courses removed from the list of navigable waterways but still maintained by the public sector, the width of free space for the use of fishermen is 1.50 metres.
Along canals, fishermen can use the towpath and that part of the banks that is part of the public domain, as long as they allow operation of the waterway.
This right may be removed under exceptional circumstances, either for reasons that are in the general public interest, or for safety reasons, when the banks are included in industrial developments, on decision by the Ministers for Fresh Water Fishing and Management of the State Inland Waterways, or the Préfet by delegation.
In the event of failure to respect the provisions of this Article relating to right of way, the neighbour must, on injunction from the administration, return the site to its original condition within a set time limit. Failure to do so within the given time will lead to this work being carried out ex officio by the administration or its representative at the neighbour's cost.
CHAPTER VI Conditions for exercising fishing rights Articles L436-1 to
L436-16
SECTION I General provisions Articles L436-1 to
L436-8
Article L436-1 Any person who practices fishing must prove his or her membership of an approved fishing and fish farming
association, or of an approved amateur implement or net fishing association for fishing in water belonging to the public domain, or an approved association of professional fishermen that have paid, over and above the statutory fee, a yearly tax the income from which is allocated to the expenses for the surveillance and enhancement of the national fish and fishing domain.
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ENVIRONMENTAL CODE Article L436-2
The partners of people having paid the fishing tax, holders of low income cards, seriously disabled war veterans or disabled workers who have a 85% or above disability pension, national service conscripts and young people under the age of sixteen are exonerated from paying the fishing tax if they use a single fishing line fitted with no more than two ordinary hooks, cast fishing excepted.
Using this line, the members of the approved associations cited above are allowed to fish freely and without formality in public domain waters as well as in the water sources where the fishing rights are owned by the State. This also applies in water sources other than those in the domain defined in 1st Article of the Code du domaine public fluvial et de la navigation intérieure, subject to having the permission of the person owning the fishing rights.
Article L436-3 The département federations of approved fishing and fish farming associations and approved professional
fishermen associations, collect where appropriate, the fishing tax centralised by the Higher Fishing Council in application of Article L. 434-1.
Article L436-4 (Act no. 2003-699 of 30 July 2003 Article 57 Official Journal 31 July 2003)
I. - In addition to the individual or collective rights that he or she may have, any member of an approved fishing and fish farming association may fish:
1° From the bank or whilst wading, in areas classified under 10° of Article L. 436-5, as first category public waterways where the fishing rights are owned by the State;
2° From the bank, whilst wading or from a boat, in areas of the said waterways classified under 10° of Article L. 436-5, as second category, as well as in water sources, irrespective of category where the fishing rights are owned by the State. However, in this case, the Minister for Fresh Water Fishing or, by delegation, the Préfet may, in exceptional circumstances prohibit whom they so wish from line fishing from a boat;
3° From the bank, only for salmon fishing irrespective of the category of waterway; However, the Minister for Fresh Water Fishing or, by delegation, the Préfet may authorise salmon fishermen to wade in the water over a given stretch of water.
II. - The right to fish as defined in this Article can only be practised using a single line. III. - The provisions of I and II also apply in water that was part of the State public waterways at the date the
promulgation of Act no. 2003-699 of 30 July 2003 relating to the prevention of technological and natural risks, compensation for damage, and that which has been the subject of a transfer to a local authority in application of the said law.
Article L436-5 Decrees approved by the Conseil d'Etat and issued, following advice from the Higher Fishing Council, dictate the
terms per basin under which may be set: 1° The weather conditions, seasons, and hours during which fishing is prohibited; 2° The sizes below which certain species of fish which, if fished must be put back in the water; these sizes must not
be less than the sizes that correspond to their initial reproduction cycle; 3° The number of catches allowed for certain fish species and, if needs be, the conditions under which they are
caught; 4° The dimensions of fishing nets, implements and instruments authorised to be used; 5° The method of checking the authorised mesh of the fishing nets for each species of fish; 6° The fishing nets, implements and instruments which are prohibited as they are liable to be harmful to fish
repopulation, as provided for in this Title; 7° Prohibited processes in and methods of fishing; 8° The fish species for which the baiting of hooks, trapping using cages, nets and other implements is prohibited; 9° The waterways or sections of waterway where wading fishing is prohibited in order to protect the aquatic
environment; 10° The classifying of waterways, canals and water basins into two categories: a) The first category includes those that are mainly populated with trout, as well as those where it appears important
to ensure specific protection of this species of fish; b) The second category includes all the other waterways, canals and water basins covered by the provisions of this
Title.
Article L436-6 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
The act of setting up of any type of dam, apparatus or fishing structure aimed at completely stopping the free passage of fish in order to hold them captive is punishable by a fine of 3750 euros.
Under the terms defined in Article L. 437-20, and without prejudice to the application of the provisions of this Title, the court may order the rehabilitation of the site along with the imposition of a periodic penalty payment.
Article L436-7 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
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ENVIRONMENTAL CODE The act of throwing drugs or bait into water sources defined in Article L. 431-3 with the intention of intoxicating or
destroying fish is punishable by two years' imprisonment and a fine of 4 500 euros. Any person who uses explosives; electric shocks, or unauthorised products or methods with the intention of
capturing or destroying fish will receive the same sentence.
Article L436-8 Boat owners, layers of nautical buoys and seamen who use the State-owned waterways, canals and lakes cannot
carry on their boats any fishing net or implement other than those designed for line fishing. They can only fish from their vessels using a line, fly fishing and trawling excepted, and on the condition that they
comply with the provisions of this Title and the enactments to enforce it.
SECTION II Special authorisations Article L436-9
Article L436-9 The administrative authority responsible for freshwater fishing may, during the closed season for fishing, authorise
the capture and transport of fish for reproduction or repopulation purposes. It may, at any time, authorise the capture and the transport of fish for sanitary or scientific purposes, and their
transport and sale in the event of a biological imbalance.
SECTION III Estuaries Articles L436-10 to
L436-11
Article L436-10 In the area between the salt water line and the limits of the merchant marine register set on 17 June 1938,
professional sea fishermen holding a licence can fish under the same terms as licence-holding professional freshwater fishermen.
In waterways and canals open to the sea, upstream of the salt water line up to the earlier limits of the merchant marine register, which were set prior to 8 November and 28 December 1926, professional sea fishermen who, on 1st January 1927, were fishing in this area under the terms of the merchant marine register and who made their request prior to 1st January 1928, retain the right to continue this fishing using a licence which is issued free.
Article L436-11 As regards freshwater and maritime fishing in waterways and canals open to the sea, decrees approved by the
Conseil d'Etat govern in a uniform manner, the conditions under which, for species which live in both salt and fresh water, are set:
1° The times during which it is prohibited to fish these type of fish; 2° The legal sizes under which these species cannot be fished; 3° The measures which facilitate the reproduction, development, conservation and movement of these species; 4° The list of species the sale or peddling of which is prohibited; 5° The list of fish that are prohibited from being introduced; 6° The number and sizes of fishing nets, implements and apparatus which are permitted.
SECTION IV Permanent reserves and prohibitions Article L436-12
Article L436-12 (Act no. 2002-92 of January 2002 Article 24 Official Journal 23 January 2002)
A Conseil d'Etat decree or, in Corsica, the deliberations of the Corsican Assembly, sets out the conditions under which fishing is prohibited in certain sections of waterways, canals or water basins in order to encourage the protection and reproduction of fish. The indemnities to which are entitled the adjacent property owners who have been denied the right to fish for more than one complete year in accordance with this Article, are set, if an out-of-court settlement cannot be reached, by the administrative courts.
SECTION V Sale Articles L436-13 to
L436-16
Article L436-13 Only full- or part-time professional fishermen are authorised to sell their catch.
Article L436-14 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
Subject to the provisions of Article L. 436-15, for any person who is not classified as a professional freshwater fisherman, the act of selling his or her catch is punishable by a fine of 3750 euros.
Any person who knowingly purchases or sells the catch of someone who is not classified as a professional freshwater fisherman is subject to the same punishment.
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ENVIRONMENTAL CODE Article L436-15
I. - It is prohibited to put on sale, sell, purchase, transport, peddle and export the various fish species during prohibited fishing periods.
II. - This provision does not apply, subject to their origin being able to be proven, to: 1° Fish that have been caught either in waters not mentioned in Article L. 431-3, or waters defined in Articles L.
431-6 and L. 431-7; 2° Any fish currently represented in waters mentioned in this Title that are caught, during an authorised fishing
season, in waters that are subject to maritime regulations; 3° Any fish originating from a foreign country and authorised to be imported.
Article L436-16 It is prohibited to peddle, sell, or purchase trout, grayling, brook trout or salmon that have been fished in the waters
mentioned in this Title. However, this provision does not apply to professional freshwater fishermen when fishing in waterways, canals and
water basins that are in the public domain, or in dammed water basins where fishing rights are owned by the State, or in non State-owned water basins the list of which is set by the Minister responsible for freshwater fishing.
CHAPTER VII Additional criminal provisions Articles L437-1 to
L437-23
SECTION I Identification and investigation of offences Articles L437-1 to
L437-13
Subsection 1 Authorised officials Articles L437-1 to
L437-3
Article L437-1 (Act no. 2005-157 of 23 February 2005 Article 230 VII Official Journal of 24 February 2005 in force on 26 June 2005) (Order no. 2005-805 of 18 July 2005 Article 9 Official Journal of 19 July 2005)
I. - In addition to the officers of the Judicial Police Department listed in Articles 16, 20 and 21 of the Code de procédure pénale, and officers authorised under special laws, the following persons are authorised to identify and investigate infringements of the provisions of this Title and the enactments for its application, irrespective of where these offences are committed:
1° Sworn officials of the Higher Fishing Council and the Domaine National de Chambord commissioned for this purpose by a decision of the administrative authority;
2° Rural water and forest engineering specialists; public works engineers and qualified officers responsible for policing fishing in the département agriculture and forest departments and National Forests and Parks Office , specialists and officials of the canal services commissioned for this purpose by a decision of the administrative authority, and insofar as they are sworn to this effect;
3° Specialists belonging to the National Forestry Office and its sworn officials described in Article L. 122-7 of the Code forestier;
4° Rangers; 5° Officers of the National Hunting and Wildlife Office commissioned and sworn in the area to which they are
assigned. II. - The officers commissioned by the Higher Fishing Council can inspect the conditions under which those fish
species that live in both salt and fresh water are fished above the salt water line. III. - Also able to identify and investigate infringements of the provisions of this Title and the enactments for its
application are custom officers and officers authorised by the decree of 9 January 1852 relating to maritime fishing. NB: Law no. 2005-157 Article 230 VIII: "A decree determines the conditions of application of the present article (art.
230), notably the methods for organising and operating the establishment, conserving the Château, and managing the forest."
These provisions take effect on the date upon which the decree provided for in article 230 (VIII) comes into force, and at the latest on 1st July 2005.
Article L437-2 The officials mentioned in Article L. 437-1 identify and make official reports on offences in the jurisdiction of the
court in which they are duly sworn.
Article L437-3 With regard to the fulfilment of their policing role, officials commissioned by the Higher Fishing Council have the
same status as State Forestry technicians.
Subsection 2
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ENVIRONMENTAL CODE Reports Articles L437-4 to
L437-5
Article L437-4 Infringements of the provisions of this Title and the enactments for its application are subject to official reports
written up and signed by two officers or officials, which substantiate, until proven otherwise or registered as false, the material actions relating to the offences investigated.
Article L437-5 (Order no. 2005-805 of 18 July 2005 Article 10 Official Journal of 19 July 2005 rectification JORF 23 July 2005)
In order not to be considered null and void, reports must be sent directly to the Procureur de la République within five days following the closure of the investigation.
A copy is sent, within the same period, to the interested party, to the administrative authority, to the President of the département federation of approved fishing and fish farming associations and the President of the approved association of professional freshwater fishermen.
Subsection 3 Identification of offences Articles L437-6 to
L437-12
Article L437-6 Fish which has been caught, held, transported or sold in violation of the provisions of this Title or the enactments for
its application can be identified day and night throughout the year by the officers or officials described in Article L. 437-1, on sites open to the public where fish is sold or consumed, as well as on premises not open to he public, such as warehouses, freezer centres and canning factories.
Only the provisions of the Code de procédure pénale apply to premises other than those mentioned in the previous paragraph. Nonetheless, the officers and officials mentioned in Article L. 437-1 assist, if so requested, the officers of the Judicial Police Department carrying out the investigations.
Article L437-7 Every fisherman is obliged to present his boat and open its cages, refrigerators, depots, baskets, chests, creels and
other tanks and submersible live fish carriers whenever required to do so by the officers and officials responsible for policing fishing.
In addition, these officers and officials can carry out inspections of the water courses of water mills and other permanent facilities located in or on the channels of waterways.
Article L437-8 Boat owners, layers of nautical buoys and seamen are obliged to accept the boarding and inspection of their boats
and crews by the officers and officials responsible for policing fishing at any time.
Article L437-9 The officers and officials responsible for policing fishing have the right to call directly upon the police in order to
suppress fishing related offences, and to seize fishing equipment, illegally caught fish, vessels, automobiles and other vehicles covered in Article L. 437-10.
Article L437-10 The officers or officials mentioned in Article L. 437-1 are able to seize all prohibited lines, nets, implements and
other fishing equipment, and may seize authorised equipment used in the performance of an infringement of provisions of this Title and the enactments for its application. In addition, they may seize vessels, automobiles and other vehicles used by the offenders to reach the place where the offence was committed, or to transport fish that has been caught, put on sale, sold or purchased as the result of an infringement of the provisions of this Title and the enactments for its application.
Article L437-11 The officers and officials mentioned in Article L. 437-1 are able to seize fish that has been caught, transported, sold
or purchased as the result of an infringement of the provisions of this Title and the enactments for its application. The confiscated fish are either put back into the water or destroyed, or sold with the proceeds going to the Treasury, or given by the authorities to a charitable institution.
Article L437-12 The perpetrator of the offence is obliged to hand over the seized item when requested by the officer or official who
has investigated the offence.
Subsection 4 Private fishing guards Article L437-13
Article L437-13 Sworn private fishing guards make official reports on infringements of the provisions of this Title and the enactments
for its application which are prejudicial to the holders of the fishing rights that employ them. The provisions of Article 29 of the Code de procédure pénale apply to these reports, which have probative force
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ENVIRONMENTAL CODE unless proven otherwise.
The provisions of Articles L. 437-7, first paragraph, L. 437-9, L. 437-10, L. 437-11 and L. 437-12, apply, inasmuch as they relate to the seizure of fishing equipment, to sworn private fishing guards.
SECTION II Transaction Article L437-14
Article L437-14 (Order no. 2005-805 of 18 July 2005 Article 11 Official Journal of 19 July 2005)
For infringements of the provisions of this Title and the enactments for its application, the administrative authority responsible for freshwater fishing has the right to come to terms, following approval by the Procureur de la République, and according to the methods set out by a Conseil d'Etat decree.
This right does not apply to infringements of the first four classes, for which public action is extinguished by the payment of a flat-rate fine in application of article 429 of the Code de procédure pénale.
Public action is extinguished when the person convicted of the infringement has, within the periods stipulated, fulfilled his or her obligations resulting from the acceptance of the transaction.
For offences mentioned in Article L. 432-2 which relate to companies described in Title 1 of Book V of this Code, before any transaction, the opinion of the inspector of classified facilities must be sought on the conditions under which the offender has applied the provisions of the first Title of Book V.
SECTION III Proceedings Articles L437-15 to
L437-17
Article L437-15 The legally appointed officials in conjunction with the public ministry carry out all proceedings and actions for
redressing these offences, excluding violations of fishing prohibitions without the permission of the holder of the fishing rights.
Article L437-16 The legally appointed officials mentioned in Article L. 437-15 have the right to place the case before a court and are
heard in order to argue their conclusions. They can, on behalf of the administration they represent, appeal against a judgement, and lodge an appeal with the
Supreme Court.
Article L437-17 Officials commissioned by the Higher Fishing Council and State forestry technicians can, in actions and
proceedings undertaken on behalf of the administration, quote and give details of events, but cannot carry out seizures and forced sales.
SECTION IV Civil action Article L437-18
Article L437-18 The département federation of approved fishing and fish farming associations and the approved association of
professional freshwater fishermen can exercise their accepted rights under civil law when acts which constitute an infringement of the provisions of this Title and the enactments for its application are directly or indirectly prejudicial to the collective interest that they are obliged to defend.
SECTION V Sanctions Articles L437-19 to
L437-23
Subsection 1 Aggravating circumstances Article L437-19
Article L437-19 Sentences can be doubled when offences are committed at night.
Subsection 2 Periodic penalty payments Article L437-20
Article L437-20 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Act no. 2004-204 of 9 March 2004 Article 198 Official Journal of 10 March 2004 in force on 1st January 2005) (Order no. 2005-805 of 18 July 2005 Article 22 II subject to reserves Official Journal of 19 July 2005)
The periodic penalty payment imposed by the court in application of Articles L. 431-6, L. 432-4, L. 432-8 and L. 436-6 is for an amount of 15 to 300 euros per day of delay in the execution of that the mandatory measures imposed by
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ENVIRONMENTAL CODE the court.
The periodic penalty payment ceases to apply on the day that the aforementioned measures are fulfilled. The money is, on the request of the injured party, then released by the court and recovered by the Treasury Accounts Office in the same way as a criminal fine.
It does not give rise to legal restraint. NB: Order 2005-805 of 18 July 2005 Article 22 II: The reference made to article L. 431-6 by article L. 437-20 is
repealed on the date of publication of the decree provided for in I of the present article.
Subsection 3 Confiscation Article L437-21
Article L437-21 Prohibited lines, nets and implements which have been seized are deposited with the Clerk of The Court's office
and, following the handing down of a final judgement, are surrendered to the administration responsible for freshwater fishing for destruction.
Forfeiture of seized non-prohibited lines, nets and implements, as well as vessels, automobiles and other vehicles used by the guilty parties can be ordered. The forfeiture of vessels, automobiles and other vehicles can be ordered in value.
If forfeiture is not ordered or ordered in value, the seized items and vehicles are returned.
Subsection 4 Exclusion from approved associations Article L437-22
Article L437-22 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
Any judgement or order pronouncing a conviction for a fishing offence, excluding offences involving fishing when prohibited, other than with the permission of the holder of the fishing rights, can exclude the guilty party from being a member of an approved association for a period of not less than one year, and not more than three years. In the event that this is a repeat offence, this exclusion is for a period of not less than two years, and not more than five years. When the guilty party is a professional fisherman carrying out his business activity, the court can order his exclusion from membership of approved professional fishing associations for a period not exceeding two years; in the case of a repeat offence, exclusion cannot be for more than five years.
Any person who continues to fish during the period that he or she is excluded, will be punished by a fine of 3750 euros. Lines, nets and implements will be confiscated.
Subsection 5 Responsibility of legal entities Article L437-23
Article L437-23 I. - Legal entities can be declared criminally responsible under the conditions provided for in Article 121-2 of the
Code pénal for infringements of the provisions of Chapter II of this Title. II. - The punishments incurred by legal entities are: 1° Fines, in accordance with the terms set out in Article 131-38 of the Code pénal; 2° The penalties mentioned in 2°, 3°, 4°, 5°, 6°, 8° and 9° of Article 131-39 of the same Code. III. - The prohibition mentioned in 2° of Article 131-39 of the same Code covers the activity in which or during which
the offence was committed.
CHAPTER VIII Miscellaneous provisions Articles L438-1 to
L438-2
Article L438-1 The laws and regulations relating to river fishing are declared enforceable in the départements of Bas-Rhin,
Haut-Rhin and Moselle from 1st January 1946, subject to the application of the International Conventions of 30 June 1885, 18 May 1887 and 19 December 1890.
Article L438-2 A Conseil d'Etat decree sets, as required, the methods by which this Title is applied.
BOOK V Prevention of pollution, risks and nuisances Articles L511-1 to
L582-1 TITLE I Classified facilities for the protection of the environment Articles L511-1 to
L517-2
CHAPTER I
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ENVIRONMENTAL CODE General provisions Articles L511-1 to
L511-2
Article L511-1 (Act no. 2001-44 of 17 January 2001 Article 11 IV Official Journal of 18 January 2001)
The provisions of the present Title apply to factories, workshops, depots, work sites and, in general, to all facilities operated or owned by any public or private person or entity, which might present hazards or drawbacks for the convenience of the neighbourhood, or for public health and safety, or for agriculture, or for the protection of nature and the environment, or for the conservation of sites and monuments or elements of the archaeological heritage.
The provisions of the present Article are also applicable to quarry operations as defined in Articles 1 and 4 of the Code minier.
Article L511-2 The facilities concerned by Article L. 511-1 are defined in the nomenclature of classified facilities set by a Conseil
d'Etat decree issued on the basis of a report from the Minister responsible for classified facilities, after the opinion of the Higher Council for Classified Facilities. This decree defines the facilities as being subject to authorisation or to declaration, according to the gravity of the hazards or drawbacks their operation might present.
CHAPTER II Installations subject to authorisation or declaration Articles L512-1 to
L512-19
SECTION I Facilities subject to authorisation Articles L512-1 to
L512-7
Article L512-1 (Act no. 2003-699 of 30 July 2003 Article 4, Article 25 Official Journal of 31 July 2003) (Act no. 2006-11 of 5 January 2006 Article 77 Official Journal of 6 January 2006)
The facilities that present serious hazards or drawbacks for the interests referred to in Article L. 511-1 are subject to authorisation by the Préfecture.
The authorisation may be granted only if these hazards or drawbacks can be prevented by measures which are specified in the ruling of the Préfecture.
The applicant supplies a risk study specifying the risks to which the facility may expose the interests referred to in Article L. 511-1, directly or indirectly, in case of an accident for whatever reason, be it internal or external to the facility.
The content of the risk study must relate to the scale of the risks caused by the facility. Where needs be, this study gives rise to a risk analysis which takes into consideration the probability of an accident occurring and the kinetics and gravity of potential accidents, in accordance with a methodology which is explained in the said analysis.
It defines and justifies appropriate measures to reduce the probability and effects of such accidents. The granting of the authorisation, for these facilities, may be subject in particular to their distance from dwellings,
from buildings habitually occupied by third parties, establishments receiving the public, waterways, communication routes, water catchment areas, or zones destined for dwellings by binding planning documents. It takes into account the technical and financial capacities of the applicant to conduct his or her project in compliance with the interests referred to in Article L. 511-1 and to fulfil the obligations of Article L. 512-17 when the activity ceases.
Article L512-2 (Order no. 2005-1527 of 8 December 2005 Article 28 Official Journal of 9 December 2005, in force on 1st July 2007)
The authorisation provided for in Article L. 512-1 is granted by the Préfet, after a public enquiry into any possible incidences the project might have on the interests mentioned in Article L. 511-1 and after the municipal councils concerned have given their opinion. A département-level commission is also consulted; it may vary in accordance with the type of facilities in question and its composition, set by a Conseil d'Etat decree, includes notably representatives of the State, of the local authorities, of the professions concerned, of environmental protection associations and competent persons. The authorisation is granted by the Minister responsible for classified facilities, after an opinion has been given by the Higher Council of Classified Facilities, in any case in which the risks may concern several départements or regions.
A Conseil d'Etat decree sets the terms of application of the preceding paragraph. It also sets the conditions under which the Conseils Généraux and the Conseils Régionaux must be consulted and the form of that consultation.
If a building permit has been applied for, it may be granted but may not be executed before the closure of the public enquiry.
Article L512-3 The installation and operation conditions considered indispensable for the protection of the interests mentioned in
Article L. 511-1, the means of analysis and measurement and the means of intervention in case of an incident are set out in the authorisation ruling and, should the occasion arise, by complementary rulings issued after the said ruling.
Article L512-4 For facilities whose operation for an unlimited duration would create unacceptable dangers or drawbacks for the
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ENVIRONMENTAL CODE interests referred to in Article L. 511-1, due to increasing use of the surface or sub-surface, the authorisation must set the maximum duration of the operation or of the phase of operation in question and, should the occasion arise, the maximum volume of products stored or extracted, as well as the conditions applicable for the redevelopment of the site after the end of the operations.
A Conseil d'Etat decree sets the terms of application of this Article and, notably, the categories of facilities to which it applies.
Article L512-5 For the protection of the interests mentioned in Article L. 511-1, the Minister responsible for classified facilities may
set out by decree, after consultation with the Ministers concerned and the Higher Council of Classified Facilities, the general rules and technical regulations applicable to the facilities subject to the present section. These rules and regulations determine the appropriate measures to prevent and reduce the risks of an accident or of pollution of any kind occurring, as well as the conditions of integration of the facility into the environment and of rehabilitation of the site after operations have ceased.
These rulings apply automatically to new facilities. They stipulate, after the opinion of the professional organisations concerned, the timeframe and the terms by which they apply to existing facilities. They also set out the conditions under which some of these rules may be adapted to local circumstances by the authorisation ruling made by the Préfecture.
Article L512-6 In communes which include a production area of wines of designated origin, the authority competent to issue the
authorisation consults the National Institute of Designations of Origin. This institute is also consulted, at its request, when a facility subject to authorisation as defined above is to be
opened in a commune bordering a commune which includes a production area of wines of designated origin. It is also consulted, at its request, when a facility subject to authorisation as defined above is to be opened in a
commune bordering a commune which includes a production area of a product of designated origin other than wine. The National Institute for Designations of Origin has a period of three months in which to give its opinion. This
period commences on the day on which the competent authority refers the case to it. Once this period expires, it is deemed to have given its assent.
Article L512-7 (Act no. 2003-699 of 30 July 2003 Article 26 Official Journal of 31 July 2003)
In order to protect the interests referred to in Article L. 511-1, the Préfet may order the evaluations to be conducted or the remedies to be implemented which are rendered necessary either by the consequences of an accident or an incident occurring in the facility, or by the consequences of a failure to comply with the conditions imposed by the present Title, or by any other hazard or drawback interfering or threatening to harm the aforementioned interests. These measures are set out in rulings issued, except in case of an emergency, after an opinion has been given by the competent advisory commission on the level of the département.
SECTION II Facilities subject to declaration Articles L512-8 to
L512-13
Article L512-8 Those facilities which, while not presenting serious hazards or drawbacks for the interests referred to in L. 511-1,
must nonetheless comply with the general regulations enacted by the Préfet in order to protect the interests referred to in Article L. 511-1, are subject to declaration.
Article L512-9 The general regulations provided for in Article L. 512-8 are enacted by rulings of the Préfecture, issued after the
opinion of the competent advisory commission of the département and, for workshops above ground level, that of the agriculture orientation commission of the département. They apply automatically to any new facility or to any facility subject to a new declaration.
Later modifications of these general regulations may be rendered applicable to existing facilities in accordance with the terms and timeframe provided for in the ruling of the Préfecture also setting the conditions in which the general regulations can be adapted to local circumstances.
Establishments subject to declaration under the terms of the Law of 19 December 1917 and having obtained, by virtue of Article 19, paragraph 1 or 4, of the said Law, the suppression or mitigation of one or several regulations resulting from the rulings of the Préfecture, retain the benefit of these derogations. However, the said derogations may be terminated by a ruling of the Préfecture issued after an opinion has been given by the competent advisory commission of the département in accordance with the terms and the time limit set by the said ruling.
Article L512-10 For the protection of the interests mentioned in Article L. 511-1, the Minister responsible for classified facilities may
set out by a ruling, after consultation with the Ministers concerned and the High Council of Classified Facilities, the general rules and technical regulations applicable to certain categories of facilities subject to declaration.
These rulings apply automatically to new facilities They stipulate, after the opinion of the professional organisations concerned, the timeframe and the terms by which
they apply to existing facilities. They also set out the conditions under which some of these rules may be adapted to
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ENVIRONMENTAL CODE local circumstances by the authorisation ruling made by the Préfecture.
Article L512-11 Certain categories of facilities concerned by the present section and defined by a Conseil d'Etat decree according to
the risks they present, may be subject to periodical inspections enabling the operator to check that its facilities are operating in compliance with the conditions required by the regulations. These inspections are conducted by accredited organisations at the expense of the operator.
A Conseil d'Etat decree stipulates the terms of application of the present Article. It sets, in particular, the frequency and the working methods of the inspection system and, in particular, the conditions applicable to the accreditation of the inspection organisations and the conditions in which the results may be held at the disposal of the administration.
Article L512-12 If the interests mentioned in Article L. 511-1 are not guaranteed, by the application of the general regulations,
against the drawbacks inherent to the operation of a facility subject to declaration, the Préfet may, possibly at the request of any third parties who might be concerned and after an opinion has been given by the competent advisory commission of the département, impose any special regulations that might be necessary by a ruling.
In order to protect the interests referred to in Article L. 511-1, the Préfet may order the evaluations to be conducted or the remedies to be implemented which are rendered necessary either by the consequences of an accident or an incident occurring in the facility, or by the consequences of a failure to comply with the conditions imposed by the present Chapter. These measures are set out in rulings issued, except in case of an emergency, after an opinion has been given by the competent advisory commission on the level of the département.
Article L512-13 Facilities which, while being subject to declaration by virtue of the present Title, benefited from a lawful authorisation
before the effective date of the Law of 19 December 1917, are exempted from any declaration; they are subject to the provisions of Articles L. 512-9 and L. 512-12.
SECTION III Provisions common to authorisation and declaration Articles L512-14 to
L512-19
Article L512-14 The provisions for the application of the present Title must, when they concern waste, take into account the
objectives referred to in Article L. 541-1.
Article L512-15 The operator is required to send its application for authorisation or its declaration at the same time as its building
permit application. It must renew its authorisation application or its declaration in case of transfer, in case of extension or
transformation of its facilities or in case of a change in its manufacturing processes giving rise to the hazards or drawbacks mentioned in Article L. 511-1.
Article L512-16 A Conseil d'Etat decree defines the cases and conditions in which a change of operator is subject to an
authorisation issued by the Préfecture in consideration of the technical and financial capacities necessary to conduct the activity or rehabilitate the site in compliance with the protection of the interests referred to in Article L. 511-1.
Article L512-17 (Inserted by Act no. 2003-699 of 30 July 2003 Article 27 Official Journal of 31 July 2003)
When a facility is stopped definitively, its operator must place its site in such a condition that it cannot harm the interests mentioned in Article L. 511-1 and that it enables a future use of the site determined jointly with the Mayor or the President of the inter-commune public cooperation body competent in town planning matters and, if it is not the operator, the owner of the land on which the facility is located.
Failing an agreement between the persons mentioned in the first paragraph, when the facility is stopped definitively, its operator places the site in such a condition that it cannot harm the interests mentioned in Article L. 511-1 and that it enables a future use of the site comparable to that of the last period of operation of the facility that has been stopped.
However, in cases where the rehabilitation provided for in application of the previous paragraph is overtly incompatible with the future use of the zone, appraised notably on the basis of the town planning documents in force on the date on which the operator informed the administration of its decision to stop the facility definitively and on the use of the land located in the vicinity of the site, the Préfet may set, after an opinion has been given by the persons mentioned in the first paragraph, more restrictive rehabilitation instructions enabling a use of the site that is consistent with the said town planning documents.
For a new site on which facilities have been authorised on a date more than 6 months later than that of the publication of Act no. 2003-699 of 30 July 2003 relating to the prevention of technological and natural risks and the repair of damages, the authorisation ruling determines, after an opinion has been given by the persons mentioned in the first paragraph, the condition to which the site must be returned when the facility stops definitively.
The terms of application of the present Article are defined by a Conseil d'Etat decree.
Article L512-18
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ENVIRONMENTAL CODE (Inserted by Act no. 2003-699 of 30 July 2003 Article 28 Official Journal of 31 July 2003)
The operator of a classified facility in the categories referred to in Article L. 516-1 is required, at each notable change in its operating conditions, to make an updated report on the pollution of the soils on which the facility is located. This report is transmitted by the operator to the Préfet, to the Mayor of the commune in question and, if applicable, to the President of the inter-commune public cooperation body competent in town planning matters and to the owner of the land on which the facility is located. The latest report must be attached to any unilateral undertaking to sell or to buy, and to any contract performing or noting the sale of the land on which the classified facility is located.
The terms of application of the present Article are defined by a Conseil d'Etat decree.
Article L512-19 (Inserted by Act no. 2003-699 of 30 July 2003 Article 28 Official Journal of 31 July 2003)
When a facility has not been operated for three consecutive years, the Préfet may serve formal notice to the operator requiring it to stop the facility definitively.
CHAPTER III Facilities operating by virtue of vested interests Article L513-1
Article L513-1 Those facilities which, having been lawfully put into service, become subject, by virtue of a decree relating to the
nomenclature of classified facilities, to authorisation or declaration, may continue to operate without the said authorisation or declaration on the sole condition that the operator has already informed the Préfet or informs the Préfet in the course of the year following the publication of the decree.
The information which the operator must supply to the Préfet and the measures the latter may impose in order to safeguard the interests mentioned in Article L. 511-1 are specified by a Conseil d'Etat decree.
CHAPTER IV Inspections and disputes relating to classified facilities Articles L514-1 to
L514-20
SECTION I Inspection and administrative sanctions Articles L514-1 to
L514-8
Article L514-1 I. - Regardless of any criminal proceedings that might be brought, and when an inspector of classified facilities or an
expert appointed by the Minister responsible for classified facilities has ascertained a failure to comply with the conditions imposed on the operator of a classified facility, the Préfet serves formal notice to the latter to comply with the said conditions by a set deadline. If, on expiry of the deadline set for performance, the operator has not complied with the said order, the Préfet may:
1° Oblige the operator to deposit with the Treasury a sum corresponding to the amount of the work to be carried out, which sum will be returned to the operator gradually as the required measures are performed; the said sum is collected in the same way as that applied in matters of debts not relating to tax or to real estate. In the collection of the said sum, the State benefits from a preferential claim of the same rank as that provided for in Article 1920 of the Code général des impôts;
2° Have the required measures enforced ex officio and at the expense of the operator; 3° Issue a ruling, after an opinion has been given by the competent advisory commission of the département,
suspending the operation of the facility until the conditions imposed have been fulfilled and take the necessary provisional measures.
II. - The sums deposited in application of 1° of I may be used to settle any expenses caused by the forced implementation of the measures provided for in 2° and 3° of I.
III. - When the enforceable order issued by the administrative authority to demand the payment of a deposit is subject to an objection lodged with the Administrative Judge, the President of the Administrative Tribunal or the magistrate delegated by the said President may, in a summary procedure, notwithstanding this objection, at the request of the representative of the State or of any other person concerned, decide that this action is not suspensive, when the motives put forward by the operator do not seem serious. The President of the Tribunal must give a decision within fifteen days of the case being referred to him or her.
Article L514-2 When a classified facility is operated without the declaration or authorisation required by virtue of the present Title,
the Préfet serves the operator with official notice to regularise the said situation before a given date limit, by submitting, as applicable, a declaration or an authorisation application. The Préfet may, by a ruling stipulating its motives, suspend the operation of the facility until the declaration has been submitted or until the decision relating to the authorisation application.
If the operator does not comply with the notice to regularise its situation or if its authorisation application is rejected, the Préfet may, if necessary, order the closure or the suppression of the facility. If the operator does not comply within the set deadline, the Préfet may apply the procedures provided for in clauses 1° and 2° of I of Article L. 514-1.
The Préfet may have a member of the law enforcement services affix seals on any facility continuing to operate
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ENVIRONMENTAL CODE either in infringement of measures to suppress, close or suspend it by virtue of Article L. 514-1, Article L. 514-7, or of the first two paragraphs of the present Article, or despite a ruling issued to refuse authorisation.
Article L514-3 For the duration of the suspension of operations pronounced for the application of Article L. 514-1 or Article L.
514-2, the operator is required to provide for the payment to its personnel of the salaries, allowances and remuneration of all kinds to which they were entitled hitherto.
Article L514-4 When the operation of a facility not included in the nomenclature of classified facilities presents serious hazards or
drawbacks for the interests mentioned in Article L. 511-1, the Préfet, after an opinion being given - except in case of emergency - by the Mayor and the competent advisory commission of the département, serves official notice to the operator to take the necessary measures to make the duly ascertained hazards or drawbacks disappear. Should the operator fail to comply with this injunction within the allotted time, the measures provided for in Article L. 514-1 may be applied.
Article L514-5 (Act no. 2006-11 of 5 January 2006 Article 96 Official Journal of 6 January 2006)
The people responsible for inspecting classified facilities or for making expert appraisements are sworn and bound by the obligations of professional secrecy subject to the conditions and sanctions provided for in Articles 226-13 and 226-14 of the Code pénal and, if applicable, Articles 411-1 and following of the same code.
They may visit the facilities under their supervision at any time. Except in cases of unexpected inspections, the inspectors of classified facilities must inform the operator forty-eight
hours before the visit. The inspecting officer may only take away documents after a list has been drawn up and countersigned by the
operator. The list specifies the nature of the documents, their number and whether they are copies or originals. Original documents must be returned to the operator within one month following the inspection.
The operator is informed by the inspector of the results of the inspection. The inspector of classified facilities sends his or her inspection report to the Préfet and simultaneously sends a copy to the operator. The operator may inform the Préfet of his or her observations.
The provisions of the previous three paragraphs only apply to the inspections carried out in application of the present section.
Article L514-6 (Act no. 2002-276 of 27 February 2002 Article 148 Official Journal of 28 February 2002) (Act no. 2003-591 of 2 July 2003 Article 31 III 15° Official Journal of 3 July 2003) (Act no. 2003-591 of 2 July 2003 Article 31 III 15° Official Journal of 3 July 2003) (Act no. 2006-11 of 5 January 2006 Article 15 Official Journal of 6 January 2006) (Order no. 2005-1527 of 8 December 2005 Article 34 III Official Journal of 9 December 2005, in force on 1st July 2007) (Act no. 2006-11 of 5 January 2006 Article 15 Official Journal of 6 January 2006)
I. - Rulings made for the application of Articles L. 512-1, L. 512-3, L. 512-7, L. 512-8, L. 512-12, L. 512-13, L. 513-1 to L. 514-2, L. 514-4, L. 515-13 I and L. 516-1 are subject to appeal with unlimited jurisdiction. They may be deferred to the administrative jurisdiction:
1° By the applicants or operators within a period of two months beginning on the day on which they were informed of the said rulings;
2° By third parties, persons or legal entities, communes or groups of communes concerned by the drawbacks or hazards the operation of the facility presents for the interests referred to in Article L. 511-1, within a period of four years as of the publication or posting of the said rulings, this date limit being extended, if applicable, to the end of a period of two years following the start-up of the activity of the facility.
II. - The provisions of clause 2° of I are not applicable to decisions concerning authorisations to operate quarries for which the period of time during which an appeal may be lodged is six months as of the completion of the formalities of official publication of the declaration of the start-up of operation transmitted to the Préfet by the operator.
Nor are they applicable to decisions concerning authorisations to operate classified facilities for farming, related to farming or contributing to the performance of local public services or services in the general interest for which the appeal must be lodged within one year of completion of the formalities of official publication of the declaration of the start-up of operation transmitted to the Préfet by the operator.
III. - Third parties having acquired or leased buildings or built constructions in the vicinity of a classified facility only after the posting or publication of the ruling authorising the opening of the said facility or attenuating the original regulations, are not entitled to defer the said ruling to the administrative jurisdiction.
IV. - The building permit and conveyance document for the sale, to third parties, of landed property and real estate must, if applicable, make explicit mention of the related easements created by virtue of Article L. 111-1-5 of the Code de l'Urbanisme.
Article L514-7 If it should appear that a classified facility presents, for the interests mentioned in Article L. 511-1, hazards or
drawbacks which were not known at the time of its authorisation or declaration, the Minister responsible for classified facilities may order the suspension of its operations for the period of time necessary to implement the measures required
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ENVIRONMENTAL CODE to eliminate the said hazards or drawbacks. Except in case of emergency, the suspension is ordered after the competent advisory bodies have given their opinion and after the operator has been given the opportunity to present its own remarks.
A Conseil d'Etat decree, issued after the Higher Council for Classified Facilities has given its opinion, may order the closure or suppression of any facility, listed or not in the nomenclature, which presents, for the interests mentioned in Article L. 511-1, hazards or drawbacks such that the measures provided for in the present Title cannot eliminate them.
Article L514-8 The costs corresponding to the analyses, expert appraisals or inspections required for the application of the present
Title are to be borne by the operator.
SECTION II Criminal provisions Articles L514-9 to
L514-18
Article L514-9 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
I. - The operation of a facility without the authorisation required is punishable by one year's imprisonment and a fine of 75 000 euros.
II. - In case of conviction, the court may forbid the use of the facility. This prohibition ceases to be effective if an authorisation is issued at a later date in the conditions laid down by the present Title. The provisional execution of the prohibition may be ordered.
III. - The court may also demand the rehabilitation of the premises and set a date limit for performance. IV. - In the latter case, the court may: 1° Either adjourn the announcement of the sentence and make the injunction to rehabilitate the premises subject to
a maximum duration and to payment of a daily penalty determined by the court in case of a delay in performance; the provisions of Article L. 514-10 concerning the adjournment of the announcement of the verdict are applicable in this case;
2° Or order that the work to rehabilitate the premises be carried out automatically at the expense of the condemned party.
Article L514-10 (Act no. 2004-204 of 9 March 2004 Article 198 Official Journal of 10 March 2004, in force on 1st January 2005)
I. - In case of condemnation to a police penalty for the infringement of the rulings of the Préfecture or Minister provided for in the present Title or of the regulations for its application, the court may decide to prohibit use of the facility until the provisions concerned by the infringement have been complied with.
II. - The court may adjourn the announcement of the verdict and demand that the accused comply with these provisions.-
It sets a deadline for the performance of the stipulations concerned by the injunction. It may make the injunction subject to the payment, in case of delay in performance, of penalties of which it sets the rate and maximum duration over which they are applicable.
There may only be one such adjournment; it may be ordered even if the accused does not appear in person. The provisional execution of the adjournment and injunction may be ordered.
III. - At the hearing to which the case is adjourned, when the stipulations concerned by the injunction have been performed within the asset time, the court may either dispense the accused of a sentence or pronounce the sentence provided for.
When there has been a delay in the performance of the stipulations, the court liquidates the penalty due, if such a measure has been ordered, and pronounces the sentence provided for.
When the stipulations have not been performed, the court determines the penalty due if such a measure has been ordered, pronounces the sentence and may also order the performance of the stipulations without any further ruling required and at the expense of the condemned party.
The ruling on the sentence is made within the time limit set by the court, taking into account the time allotted for the performance of the stipulations.
IV. - The rate of the penalty for delay in performance as set in the adjournment ruling cannot be changed. To calculate the penalty for a delay in performance, the court appraises the failure to perform, or the delay in
performance of the stipulations, taking into account, if applicable, the occurrence of any events which cannot be attributed to the accused.
The penalty is collected by the Treasury like a fine in criminal proceedings; it does not give rise to legal restraint.
Article L514-11 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Act no. 2003-699 of 30 July 2003 Article 29, Article 30 Official Journal of 31 July 2003)
I. - The operation of a classified facility in infringement of a measure to close, suppress or suspend it for the application of Articles L. 514-1, L. 514-2 or L. 514-7 or of a prohibition measure pronounced by virtue of Articles L. 514-9 or L. 514-10, or the failure to comply with the summons issued for the application of Article L. 512-19 is punishable by
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ENVIRONMENTAL CODE two years' imprisonment and a fine of 150 000 euros.
II. - The continued operation of a classified facility while failing to comply with the summons to meet, within a set time, the technical stipulations determined for the application of Articles L. 512-1, L. 512-3, L. 512-5, L. 512-7, L. 512-8, L. 512-9 or L. 512-12 is punishable by six months' imprisonment and a fine of 75,000 euros.
The continued operation of a facility while failing to comply with a summons issued for the application of Article L. 514-4 by the Préfet after opinions have been given by the Mayor and the competent advisory commission in the département is punishable by the same sentence.
III. - Failure to comply with a summons to take, within the set time, measures for the surveillance or rehabilitation of a facility or its site ordered for the application of Articles L. 512-3, L. 512-5, L. 512-7, L. 512-9, L. 512-12, L. 514-2, L. 514-4 or L. 514-7 when activity has ceased is punishable by six months' imprisonment and a fine of 75,000 euros.
IV. - Failure to comply with the provisions of the first paragraph of Article L. 516-2 is punishable by six months' imprisonment and a fine of 75 000 euros.
Article L514-12 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
Obstructing the persons responsible for inspecting or making expert appraisements of classified facilities in the exercise of their functions is punishable by one year's imprisonment and a fine of 15 000 euros.
Article L514-13 Infringements are officially reported by officers of the judiciary police and classified facility inspectors. These reports
are drawn up in duplicate, one copy being sent to the Préfet and the other to the Procureur de la République. They have probative force unless proven otherwise.
Article L514-14 The court may order the public display or distribution of all or a part of the decision pronounced in the conditions
provided for by Article 131-35 of the Code pénal.
Article L514-15 For the duration of the prohibition to use the facility pronounced for the application of Article L. 514-10, the operator
is required to provide for the payment to its personnel of the salaries, allowances and remuneration of all kinds to which they were entitled hitherto.
Article L514-16 When legal entities under public law intervene, materially or financially, to attenuate the damage resulting from an
incident or an accident caused by a facility mentioned in Article L. 511-2 or to avoid the aggravation of that damage, they are entitled to the reimbursement, by the persons responsible for the incident or the accident, of the expenses they have incurred, without prejudice to compensation for the other damage suffered. In this respect, they may claim for damages in the criminal courts referred to consecutively to the incident or accident.
This action is without prejudice to the rights opened up by Article L. 142-2 to associations corresponding to the conditions of this Article.
Article L514-17 The penalties provided for in the present section are applicable to those under the jurisdiction of military tribunals of
the armed forces in accordance with the Code de justice militaire, and notably its Articles 165 and 171.
Article L514-18 I. - Legal entities may be declared criminally responsible, in the conditions provided for in Article 121-2 of the Code
pénal, for the infringements defined in Articles L. 514-9 and L. 514-11. II. - The possible sentences for legal entities are: 1° Fines, in accordance with the terms of Article 131-38 of the Code pénal; 2° The sentences mentioned in clauses 2°, 3°, 4°, 5°, 6°, 8° and 9° of Article 131-39 of the same code. III. - The prohibition mentioned in clause 2° of Article 131-39 of the Code pénal covers the activity in which or on the
occasion of which the infringement was committed.
SECTION III Protection of third parties Articles L514-19 to
L514-20
Article L514-19 Authorisations are granted subject to the rights of third parties.
Article L514-20 (Act no. 2003-699 of 30 July 2003 Article 35 Official Journal of 31 July 2003)
When a facility subject to authorisation has been operated on a piece of land, a person selling that piece of land is required to inform the purchaser of this in writing; he or she also informs them, to the best of his knowledge, of the major hazards or drawbacks resulting from the said operation.
If the seller is the operator of the facility, he or she also indicates to the purchaser in writing if the activity gave rise to the handling or storage of chemical or radioactive substances. The deed of sale stipulates that this formality has been
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ENVIRONMENTAL CODE accomplished.
Failing this, the purchaser may choose between suing for the sale to be cancelled or receiving a refund of a part of the price; the purchaser may also demand the rehabilitation of the site at the expense of the seller, when the cost of the said rehabilitation does not seem disproportionate in relation to the sale price.
CHAPTER V Provisions specific to certain facilities Articles L515-1 to
L515-26
SECTION I Quarries Articles L515-1 to
L515-6
Article L515-1 (Act no. 2003-591 of 2 July 2003 Article 31 III 16° Official Journal of 3 July 2003) (Act no. 2003-591 of 2 July 2003 Article 31 III 16° Official Journal of 3 July 2003) (Act no. 2005-157 of 23 February 2005 Article 42 Official Journal of 24 February 2005) (Order no. 2004-637 of 1 July 2004 Article 34-4 Official Journal of 2 July 2004, in force on 1st July 2006) (Act no. 2004-1343 of 9 December 2004 Article 78 XXXII 4 Official Journal of 10 December 2004, in force on 1st July 2005) (Act no. 2005-157 of 23 February 2005 Article 42 Official Journal of 24 February 2005) (Order no. 2004-637 of 1 July 2004 Article 34-4 Official Journal of 2 July 2004, in force on 1st July 2006) (Act no. 2005-1129 of 8 September 2005 Article 1 Official Journal of 9 September 2005)
Quarry operations are subject to the administrative authorisation provided for in Article L. 512-1, except for small, low-production, open-air marl, chalk, or granitic sand quarries or quarries for any material destined for marning soils, without commercial purposes, on the land of the operators or in the quarry of the commune, which are subject to the provisions applicable to facilities under the declaration system presented in section 2 of Chapter II of the present Title. This exception also applies to small-sized stone, sand and clay quarries destined for the restoration of historic monuments or buildings featuring in the safeguarding and enhancement plan of a protected area listed or registered as buildings the demolition, removal or alteration of which are prohibited, or the restoration of ancient buildings the patrimonial or architectural interest of which justifies this restoration with their original materials. The same exception applies to drilling operations carried out prior to the opening or extension of small-sized and low-yield marble stone quarries. These stone, sand and clay quarries and these drilling operations are subject to periodic inspections, the cost of which is borne by the operator, carried out by the accredited bodies described in article L. 512-11.
The administrative authorisation referred to in the previous paragraph may not exceed thirty years. This authorisation may not exceed fifteen years for pieces of land on which clearing was authorised in application of
Articles L. 311-1 or L. 312-1 of the Code forestier. However, when the use of this land is associated with a transformation industry requiring large-scale investments, the duration of the operation authorisation may be extended to thirty years after such an opinion is given by the département commission competent in matters of nature, landscapes and sites.
The authorisation may be renewed as provided for in Article L. 512-2. Any authorisation to operate quarries is subject, in wine-growing areas classified as designation of origin or
high-quality origin, and in Vin de Pays production areas, to the opinion of the National Institute of Designations of Origin and the National Professional Office for Wines.
The time necessary to carry out diagnoses and preventive archaeological dig operations interrupts the duration of the administrative quarry operation authorisation.
NB: Order 2005-1129 of 8 September 2005: The provisions of article 1 of Order 2005-1129 apply to Mayotte.
Article L515-2 (Order no. 2004-637 of 1 July 2004 Article 34-4 Official Journal of 2 July 2004, in force on 1st July 2006) (Repealed by Act no. 2004-1343 of 9 December 2004 Article 78 XXXII 4 Official Journal of 10 December 2004, in force on 1st July 2005)
I. - The quarries commission of the département is presided over by the Préfet. It is composed, in equal proportions: 1° Of representatives of the relevant public administrations; 2° Of elected representatives of the local authorities; 3° Of representatives of the quarry operator's profession and of users of materials from quarries; 4° Of representatives of associations for the protection of the environment and of the agricultural professions. II. - The President of the Conseil Général is automatically a member of the commission. III. - The quarries commission of the département examines the applications for quarry operation authorisations
provided for in Articles L. 512-1 and L. 512-2 and issues an opinion on the said applications stipulating its motives. IV. - The Mayors of communes on the territory of which a quarry operation is projected are also automatically
members of the commission when it examines the authorisation application for the said operation. NB: Article 34-4 of Order no. 2004-637 of 1st July 2004 has been inserted by article 78 XXXII 4 of Law no.
2004-1343 of 9 December 2004. Entry into force on 1st July 2005 is enacted by article 34-7 of the same Order, inserted by article 78 XXXII 4 of Law
no. 2004-1343.
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ENVIRONMENTAL CODE Article L515-3 (Order no. 2004-637 of 1 July 2004 Article 34-4 Official Journal of 2 July 2004, in force on 1st July 2006) (Act no. 2004-1343 of 9 December 2004 Article 78 XXXII 4 Official Journal of 10 December 2004, in force on 1st July 2005)
The département quarries plan defines the general conditions governing the location of quarries in the département. It takes into account the national economic interest, the resources and needs for materials in the département and neighbouring départements, the protection of landscapes, sites and sensitive natural habitats and the need for balanced management of the territory, while encouraging sparing use of raw materials. It sets the targets to be achieved in terms of site rehabilitation and redevelopment.
The département quarries plan is drawn up after consultation of the farming and forestry land management document referred to in Article L. 112-1 of the Code rural.
It is approved, after the opinion of the Conseil Général has been given, by the Préfet. It is made public in the conditions set by decree.
Authorisations to operate quarries issued under the terms of the present Title must be compatible with this plan.
Article L515-4 Any quarry operator failing to comply with the obligations regarding the rehabilitation of a quarry authorised by virtue
of Articles L. 512-1 and L. 512-2 may be refused a new operation authorisation.
Article L515-5 Quarry operations already in existence at the date of the decree including quarries in the nomenclature provided for
in Article L. 511-2 must be rendered compliant with the obligations in terms of financial guarantees provided for in Article L. 516-1, within a period of five years as of 14 June 1994.
Article L515-6 I. - A Conseil d'Etat decree determines the particular terms of the application to quarry operations of the provisions
of Articles L. 512-1 and L. 512-2. II. - Notwithstanding the provisions of Article L. 513-1, quarries complying with the provisions of Articles 106 (old),
109 and 109-1 of the Code minier may continue to be operated in accordance with the stipulations that were applicable to them prior to the inclusion of quarries in the nomenclature of classified facilities.
The stipulations referred to in the previous paragraph are, as of the inclusion of quarries in the nomenclature of classified facilities, subject to the conditions and sanctions of the present Title and its enactments, and are governed by the provisions of Articles L. 512-3 and L. 512-7.
Authorisation and licence applications or declarations presented prior to the inclusion of quarries in the nomenclature of classified facilities are examined in accordance with the provisions applicable under the Code minier. The stipulations imposed at the end of these procedures are governed by the provisions of the present Title.
SECTION II Underground storage of hazardous products Article L515-7
Article L515-7 (Act no. 2004-105 of 3 February 2004 Article 20 Official Journal of 4 February 2004)
The underground storage in deep geological strata of hazardous products of whatever nature is subject to administrative authorisation. This authorisation may only be granted or extended for a limited duration and may therefore set down the storage reversibility conditions. The products must be removed on expiry of the authorisation.
At the end of an authorised period of operation of at least twenty five years, or if the depositing of waste has ceased for at least one year, the authorisation may be extended for an unlimited duration on the basis of an ecological assessment comprising an impact study and a presentation of the alternative solutions to maintaining the storage and their consequences. The renewal is accompanied by a new evaluation of the financial guarantees provided for in Article L. 541-26 or Article L. 552-1.
For underground storage of final waste, the Environment and Energy Management Agency may conclude with the operator, before the authorisation referred to in the first paragraph is granted, a contract determining the technical and financial conditions of the undertaking and of the continuation of operations, taking account of the possibility that the extension might be refused. This contract is submitted to the representative of the State for an opinion.
The provisions of the two previous paragraphs do not apply to the underground storage of radioactive waste.
SECTION III Facilities likely to give rise to easements of public utility Articles L515-8 to
L515-12
Article L515-8 (Act no. 2003-699 of 30 July 2003 Article 3 Official Journal of 31 July 2003)
I. - When an authorisation application concerns a classified facility to be implanted on a new site and likely to create, by danger of explosion or emanation of harmful products, very serious risks for the health and safety of neighbouring populations and for the environment, easements of public interest may be established concerning use of the land and the performance of works subject to planning permission.
The above provisions are also applicable in case of additional risks created by a new facility on an existing site or by a modification of an existing facility, requiring that a new authorisation be issued.
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ENVIRONMENTAL CODE II. - These easements include, as necessary: 1° The limitation or prohibition of the right to set up constructions or structures and to develop campsites or caravan
parking areas; 2° The subordination of construction permits to compliance with technical stipulations to limit the danger of exposure
to explosions or concerning the insulation of buildings against toxic emanations; 3° The limitation of the number of people employed in any industrial and commercial facilities that might be created
at a later date. III. - They take account of the nature and intensity of the risks incurred and may, within a given perimeter, apply in a
modulated manner from one zone to another. They may not require the demolition or surrender of existing constructions edified in compliance with the legislative and regulatory provisions in force before the establishment of the said easements.
IV. - A Conseil d'Etat decree, issued after the Higher Council of Classified Facilities has given its opinion, sets the list of categories, and any applicable capacity thresholds, of the facilities in the vicinity of which these easements may be established.
Article L515-9 The establishment of easements of public interest is decided on inside a perimeter defined around the facility either
at the request of the applicant for the authorisation or of the Mayor of the commune, or at the initiative of the Préfet. A Conseil d'Etat decree determines the conditions for defining the perimeter, taking account notably of the facility's
safety equipment and the characteristics of the site. The project defining the easements and the perimeter is subject to a public enquiry, in accordance with the
provisions of Articles L. 123-1 to L. 123-16, and to the opinions of the municipal councils of the communes within the perimeter.
The easements and their perimeter are fixed by the authority that is competent to issue the classified facility authorisation.
Article L515-10 The easements are attached to the Land Use Plan of the commune in the conditions provided for in Article L. 126-1
of the Code de l'urbanisme.
Article L515-11 When the establishment of the easements provided for in Article L. 515-8 causes a direct, material, certain
prejudice, it opens a right to compensation in favour of the owners, the holders of the real rights or their assigns. The claim for compensation must be sent to the operator of the facility within three months as of the notification of
the decision establishing the easement. Failing an amicable agreement, the compensation is fixed by the compulsory purchase judge.
The prejudice is estimated at the date of the decision in the first instance. However, only the possible use of the property and property rights one year before the opening of the public enquiry provided for in Article L. 515-9 is taken into consideration. The qualification or not of the land as eligible for building is appraised in accordance with the provisions of Article L. 13-15 of the Code de l'expropriation pour cause d'utilité publique.
The judge limits or refuses the compensation if the acquisition of rights to a piece of land was, given the time when it occurred or any other circumstance, carried out with the purpose of obtaining compensation.
Payment of the compensation is at the expense of the operator of the facility.
Article L515-12 (Act no. 2002-276 of 27 February 2002 Article 149 Official Journal of 28 February 2002)
In order to protect the interests mentioned in Article L. 511-1, the easements provided for in Articles L. 515-8 to L. 515-11 may be established on land polluted by the operation of a facility, on the land in waste storage sites or in a strip of 200 metres around the operation zone, or on the land formerly occupied by quarries or around these sites, on surfaces whose integrity is a necessary condition for public health and safety. These easements may also include the limitation or prohibition of modifications of the state of the surface or sub-surface and allow the implementation of the stipulations relating to the surveillance of the site.
In the case of waste storage facilities, these easements may be established at any time. They cease to be effective if the waste is removed from the storage zone.
These easements give rise to compensation in the conditions provided for in Article L. 515-11.
SECTION IV Facilities in which operations subject to approval are conducted Article L515-13
Article L515-13 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Act no. 2003-591 of 2 July 2003 Article 31 III 17° Official Journal of 3 July 2003)
I. - The use, in certain categories of classified facility, of substances, products, organisms or manufacturing processes may, for the enforcement of Community directives relating to the protection of the environment, be subject to approval. A Conseil d'Etat decree fixes the terms of application of the present paragraph and notably the conditions in which the approval is issued and the time limits within which it is granted or on expiry of which it is deemed to have been granted.
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ENVIRONMENTAL CODE II. - As stated in Article 90 II of the special amending acts for 1992 (no. 92-1476 of 31 December 1992), any
application for the approval mentioned in I relating to the contained use of genetically modified organisms, is subject to a tax representing the application examination costs and allocated to the general budget of the State. It is due when the application file is submitted. Its amount is set at 1,525 euros per application file. It is reduced to 305 euros when the application for approval concerns a contained use other than the first one.
Collection of and disputes relating to the tax established in the previous paragraph are handled by the accountants of the Treasury in accordance with the terms set out in Articles 81 to 95 of decree no. 62-1587 of 29 December 1962 establishing the general regulations of public accounting, in the version in force at the date of 13 July 1992.
SECTION V Waste disposal facilities Article L515-14
Article L515-14 (Order no. 2005-1129 of 8 September 2005 Article 2 II Official Journal of 9 September 2005)
Decisions relating to waste disposal facilities for the application of the present Title must include the measures provided for in Article L. 516-1.
SECTION VI Facilities subject to a technological risk prevention plan Articles L515-15 to
L515-26
Article L515-15 (Inserted by Act no. 2003-699 of 30 July 2003 Article 5 Official Journal of 31 July 2003)
The State draws up and implements technological risk prevention plans of which the objective is to limit the effects of accidents that could occur in the facilities in the list provided for in paragraph IV of Article L. 515-8 and could have effects on public health and safety either directly or by pollution of the habitat.
These plans define the perimeter of exposure to the risks, taking into account the nature and intensity of the technological risks described in the danger studies and the prevention measures implemented.
Article L515-16 (Inserted by Act no. 2003-699 of 30 July 2003 Article 5 Official Journal of 31 July 2003)
Within the perimeter of risk exposure, the technological risk prevention plans may, according to the type of risks, their seriousness, their probability and their kinetics:
I. - Define the zones in which any developments or structures or any new buildings or extensions of existing buildings are forbidden or are conditional on compliance with stipulations relating to their construction, use or operation.
In these zones, the communes or the inter-commune public cooperation bodies competent in such matters may establish an urban right of pre-emption in the conditions defined in Article L. 211-1 of the Code de l'urbanisme.
II. - Define, within the zones provided for in I, sectors where, due to the existence of high risks of an accident with rapid kinetics presenting a serious danger to human life, the communes or the inter-commune public cooperation bodies competent in such matters may establish a right to relinquish buildings or parts of buildings existing at the date of approval of the plan, which right is exercised in the conditions defined in Articles L. 230-1 and following of the Code de l'urbanisme. However, to determine the purchase price, the value of the good is assessed without taking account of any additional depreciation brought about by the establishment of the easement in accordance with I. The communes or the inter-commune public cooperation body may sign a contract with a public body and entrust to the latter the task of purchasing the property to be relinquished.
III. - Define, within the zones provided for in I, sectors where, due to the existence of high risks of an accident with rapid kinetics presenting a serious danger to human life, the State can declare that it is in the public interest for the communes or the inter-commune public cooperation bodies competent in such matters to carry out compulsory purchase in their favour, in the conditions provided for in the Code de l'expropriation pour cause d'utilité publique, of the property and real property rights, when the means required to safeguard and protect the population are impossible or more costly than compulsory purchase.
The procedure provided for in Articles L. 15-6 to L. 15-8 of the Code de l'expropriation pour cause d'utilité publique is applicable when the seriousness of the potential risks renders it necessary to take immediate possession.
To determine the purchase price or the amount of compensation, any additional depreciation of the property caused by the easement established in accordance with I is not taken into consideration.
IV. - Prescribe measures for the protection of the population from the risks incurred, relating to the development, use or operation of the constructions, structures, facilities and communication routes existing at the date when the plan was approved, which must be taken by the owners, operators and users within a date limit determined in the plan. These measures may notably include stipulations relating to the circulation and parking of vehicles transporting hazardous goods.
When protection work is stipulated for the application of the previous paragraph, it may concern only developments of which the cost does not exceed the limits set by the Conseil d'Etat decree mentioned in Article L. 515-25.
V. - Define recommendations to enhance the protection of the population in the face of the risks incurred and relating to the development, use or operation of the constructions, structures, communication routes and campsites or caravan parking areas, which can be implemented by the owners, operators and users.
Article L515-17
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ENVIRONMENTAL CODE (Inserted by Act no. 2003-699 of 30 July 2003 Article 5 Official Journal of 31 July 2003)
The measures referred to in II and III of Article L. 515-16 may be taken only in case of risks created by facilities already in existence at the date of publication of Act no. 2003-699 of 30 July 2003 on the prevention of technological and natural risks and the repair of damage.
Article L515-18 (Inserted by Act no. 2003-699 of 30 July 2003 Article 5 Official Journal of 31 July 2003)
The measures provided for by the technological risk prevention plans, in particular in II and III of Article L. 515-16, are implemented progressively according notably to the probability, seriousness and kinetics of the potential accidents, as well as the cost of the measures being envisaged in relation to the expected gain in safety.
Article L515-19 (Inserted by Act no. 2003-699 of 30 July 2003 Article 5 Official Journal of 31 July 2003)
I. - The State, the operators of the facilities at the origin of the risk and the competent local authorities or competent groups of local authorities, on the condition that they collect the Taxe professionnelle on the perimeter covered by the plan, finance the measures taken in accordance with II and III of Article L. 515-16. To this effect, they conclude an agreement fixing their respective contributions. Prior to the conclusion of this agreement, the right to relinquish property mentioned in II of the same Article may not be established and the compulsory purchase mentioned in the first paragraph of III of the same Article may be declared in the public interest only if the seriousness of the potential risks renders it necessary to take immediate possession in accordance with the procedure mentioned in the second paragraph of III.
Without prejudice to the obligations placed on the operator by the Préfet according to Articles L. 512-1 to L. 512-5 and Article L. 512-7, these agreements may allow the State, the local authorities or groups of local authorities to contribute to the financing by the operator of additional risk prevention measures making it possible to reduce the sectors mentioned in II and III of Article L. 515-16 when this financial contribution is less than the costs they would incur in implementing the measures provided for in II and III.
II. - An agreement concluded between the competent local authorities or groups of local authorities and the operators of the facilities at the origin of the risk, within a period of one year as of the approval of the technological risk prevention plan, specifies the conditions of the development and management of the land situated in the zones mentioned in I and in the sectors mentioned in II and III of Article L. 515-16.
III. - An agreement concluded between the competent local authorities or groups of local authorities, the operators of the facilities at the origin of the risk and the social housing organisations mentioned in Article L. 411-2 of the Code de la construction et de l'habitation which lease buildings located in the sectors mentioned in III of Article L. 515-6 of the present Code defines, if applicable, a programme for the re-housing of the occupants of the buildings located within these sectors. This agreement may also involve the other lessors of buildings located within these same sectors.
Article L515-20 (Inserted by Act no. 2003-699 of 30 July 2003 Article 5 Official Journal of 31 July 2003)
The land located within the perimeter of the technological risk prevention plan which the communes or groups of communes and the public bodies mentioned in the last sentence of II in Article L. 515-16 have acquired by pre-emption, surrender or compulsory purchase may be sold at cost price to the operators of the facilities at the origin of the risk.
The use to which this land is put must not aggravate the exposure of people to the risks.
Article L515-21 (Inserted by Act no. 2003-699 of 30 July 2003 Article 5 Official Journal of 31 July 2003)
The technological risk prevention plan mentions the easements of public interest established for the application of Article L. 515-8 around the facilities located within the perimeter of the plan.
Article L515-22 (Inserted by Act no. 2003-699 of 30 July 2003 Article 5 Official Journal of 31 July 2003)
The Préfet defines the method for the consultation relating to the drawing up of the draft of the technological risk prevention plan in the conditions provided for in Article L. 300-2 of the Code de l'urbanisme.
The drawing up of the technological risk prevention plan involves, notably, the operators of the facilities at the origin of the risks, the communes on the territory of which the plan must be applied, the public inter-commune cooperation bodies competent in town planning matters and whose perimeter of intervention is covered wholly or partially by the plan, and the local committee for the supply and exchange of information created in accordance with Article L. 125-2.
The Préfet collects their opinion on the draft of the plan which is then subject to a public enquiry in the conditions mentioned in Articles L. 123-1 and following.
The technological risk prevention plan is approved by a ruling of the Préfecture. It is reviewed in accordance with the same provisions.
Article L515-23 (Inserted by Act no. 2003-699 of 30 July 2003 Article 5 Official Journal of 31 July 2003)
The approved technological risk prevention plan constitutes a valid easement of public interest. It is brought to the knowledge of the Mayors of the communes located within the perimeter of the plan in accordance with Article L. 121-2 of the Code de l'urbanisme. It is attached to the local town planning plans in accordance with Article L. 126-1 of the same code.
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ENVIRONMENTAL CODE Article L515-24 (Act no. 2003-699 of 30 July 2003 Article 5 Official Journal of 31 July 2003) (Order no. 2005-1527 of 8 December 2005 Article 34 I Official Journal of 9 December 2005, in force on 1st July 2007)
I. - Infringements of the stipulations enacted for the application of I of Article L. 515-16 of the present code are punishable by the sentences provided for in Article L. 480-4 of the Code de l'Urbanisme.
II. - The provisions of Articles L. 461-1, L. 480-1, L. 480-2, L. 480-3 and L. 480-5 to L. 480-12 of the Code de l'Urbanisme are also applicable to the infringements referred to in I, subject only to the following conditions:
1° The infringements are also reported by the civil servants and agents who are commissioned and sworn for that purpose by the administrative authority that is competent in matters relating to facilities that are classified for the protection of the environment;
2° The visiting right provided for in Article L. 461-1 of the said code is also open to the representatives of the administrative authority that is competent in matters relating to facilities that are classified for the protection of the environment.
Article L515-25 (Inserted by Act no. 2003-699 of 30 July 2003 Article 5 Official Journal of 31 July 2003)
A Conseil d'Etat decree specifies the terms of application of Articles L. 515-15 to L. 515-24 and the time limits within which the technological risk prevention plans must be drawn up and implemented. For classified facilities under the responsibility of the Defence Ministry and for depots of old ammunition, this decree may, should the need arise, provide for the methods for informing and consulting with the public to be adapted to the requirements of national defence or to those specific to depots of old ammunitions.
Article L515-26 (Inserted by Act no. 2003-699 of 30 July 2003 Article 5 Official Journal of 31 July 2003)
All operators of establishments including at least one facility featuring in the list in IV of Article L. 515-8 of the present code or referred to in Article 3-1 of the Code minier, are required to have an estimation made of the probability of an accident occurring in the said facility and of the cost of the potential material damage that would be caused to third parties in case of such an accident, and to transmit the assessment report to the Préfet as well as to the President of the local committee for the supply and exchange of information relating to risks created in accordance with Article L. 125-2 of the present code.
This estimation is made for each of the major accidents identified in the danger study concerning the establishment carried out in accordance with the regulations on classified facilities. It is reviewed on the occasion of reviews of the aforementioned danger study.
This estimation cannot be used against the operator by third parties in case of disputes linked to an accident occurring in the facility.
A Conseil d'Etat decree specifies the terms of application of the present Article.
CHAPTER VI Financial provisions Articles L516-1 to
L516-2
Article L516-1 The starting up of the activity, be it after the initial authorisation or after the authorisation of a change in operator, of
facilities defined by a Conseil d'Etat decree presenting major risks of pollution or accident, of quarries and of waste storage facilities is subordinated to the provision of financial guarantees.
These guarantees are destined to cover, depending on the nature of the hazards or the drawbacks of each category of facility, the surveillance of the site and the safety of the facility, any interventions in case of an accident before or after closure and rehabilitation after closure. They do not cover compensation due by the operator to any third parties who might suffer a prejudice due to pollution or an accident caused by the facility.
A Conseil d'Etat decree determines the nature of the guarantees and the rules according to which its amount is fixed.
Without prejudice to the administrative fine procedure provided for in Article L. 541-26, any failure to comply with the obligations in terms of financial guarantees gives rise to the deposit procedure provided for in Article L. 514-1, aside from any criminal proceedings that might be initiated.
Article L516-2 (Inserted by Act no. 2003-699 of 30 July 2003 Article 31 Official Journal of 31 July 2003)
For facilities in the categories referred to in Article L. 516-1, the operator is required to inform the Préfet in case of a substantial modification of the technical or financial capacities referred to in Article L. 512-1.
If the Préfet notes that those technical and financial capacities are not likely to enable the obligations in Article L. 512-1 to be fulfilled, the Préfet may impose the provision or the review of the financial guarantees referred to in Article L. 516-1.
A Conseil d'Etat decree defines the terms of application of Article L. 516-1 and of the present Article, as well as the conditions in which they are applied to facilities started up or authorised in a regular manner before the publication of Act no. 2003-699 of 30 July 2003 on the prevention of technological and natural risks and the repair of damage.
CHAPTER VII
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ENVIRONMENTAL CODE Miscellaneous provisions Articles L517-1 to
L517-2
Article L517-1 Concerning the facilities belonging to departments and organisations under the authority of the State which are
included in a list drawn up by decree, the powers attributed to the Préfet by the present Title are exercised either by the Minister responsible for classified facilities or by the Minister for defence, for the facilities in the département.
The provisions of Articles L. 515-8 to L. 515-11 are not applicable to those of the said facilities which are under the authority of the Minister for Defence.
Article L517-2 The terms of application of the present Title are set by decrees approved by the Conseil d'Etat.
TITLE II Chemical products and biocides Articles L521-3 to
L522-1
CHAPTER I Control of chemical products Articles L521-3 to
L521-2
Article L521-1 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
I. - The aim of the provisions of the present Chapter is to protect people and the environment against the risks that can result from chemical substances and preparations.
II. - They apply to chemical substances, which is to say to the chemical elements and to their compounds in the natural state or as obtained by any production process, including any additive required to conserve the stability of the product and any impurity deriving from the process, excluding any solvent which can be separated without affecting the stability of the substance or modifying its composition, either alone or incorporated in preparations.
III. - The provisions of II of Article L. 521-6 also apply: 1° To manufactured products or equipment containing hazardous substances or preparations, defined by the
European regulations or by decrees approved by the Conseil d'Etat; 2° To land, sea and air transport of hazardous substances and preparations. IV. - For the purposes of the present Chapter, we mean by: 1° "Preparations": mixtures or solutions composed of two or more substances; 2° "Placing on the market": placing at the disposal of third parties, either free or for a charge.
Article L521-2 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
The present Chapter does not apply: 1° To the following substances and preparations at the finished stage, destined for the end user, to be used as: - medicines for human and veterinary, mentioned in Article L. 5111-1 of the Code de la santé publique; - cosmetic products in the sense of Article L. 5131-1 of the Code de la santé publique; - foodstuffs; - animal feed; 2° To other substances and preparations subject to requirements at least equivalent to those provided for in the
present Chapter; 3° To radioactive substances containing one or several radionuclides which are subject to another set of
regulations.
SECTION I Declaration of new substances Articles L521-3 to
L521-5
Article L521-3 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
I. - Prior to the placing on the market of a substance that is not included in the European inventory (EINECS) of substances existing on the European market at 18 September 1981, published in the Official Journal of the European Community no. C 146 of 15 June 1990, any producer or importer of such a substance must send a declaration to the administrative authority. If the substance presents hazards for humans or the environment, it indicates the precautions to be taken to deal with them.
The declarations provided for in the first paragraph are accompanied, in the conditions defined by a Conseil d'Etat decree, by a technical file providing information for the appraisal of the foreseeable hazards and risks, immediate or deferred, which the substance might present for humans and for the environment.
II. - However, the preceding provisions do not apply: 1° To the importer of a substance from a member State of the European Community, if that substance has been
placed on the market in that country in accordance with the national rules applied for the enforcement of the directives of
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ENVIRONMENTAL CODE the Council of the European Community;
2° To the categories of substances subject to other procedures than those provided for in the present Chapter and which take account of the risks incurred by humans and the environment. These categories are defined by a Conseil d'Etat decree.
III. - Substances destined for research and development activities and substances presenting a very low risk are subject to a simplified declaration or are exempted from declaration. A Conseil d'Etat decree specifies the terms of application of the present paragraph.
IV. - The importation of a substance from a State that is not a member of the European Community is considered to be a placing on the market, except for a substance that is in transit.
V. - The provisions of the present Article also apply to chemical substances incorporated into preparations.
Article L521-4 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
The placing on the market of substance subject to declaration by virtue of Article L. 521-3 may only take place after expiry of a set period of time as of the declaration and accompanied by a file judged acceptable by the administrative authority. This period of time, defined by a Conseil d'Etat decree, depends notably on the quantity declared for the placing on the market.
Article L521-5 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
I. - Any producer or importer of one of the substances subject to declaration by virtue of Article L. 521-3 must stay informed at all times of changes in knowledge of the impact on humans and on the environment linked with the release of the said substances. They must keep the administrative authority informed:
1° Of modifications concerning the information supplied in the declaration file as defined in Article L. 521-3; 2° Of new data on the effects of the substance on humans and on the environment. II. - The administrative authority may demand of the producers and importers that they supply the necessary
technical files to re-examine the substances that can be subject to the measures provided for in Article L. 521-6.
SECTION II Provisions common to substances and preparations Articles L521-6 to
L521-11
Article L521-6 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
I. - All producers, importers or industrial users implement the measures necessary to prevent the risks linked with the release into the environment of chemical substances and preparations. They keep at the disposal of the administrative authority:
1° The composition of the substances and preparations they have placed on the market; 2° Samples of the substances or preparations they have placed on the market; 3° Precise figures on the quantities
of substances and preparations they have placed on the market or distributed, with a breakdown according to the different uses brought to their knowledge or of which they can reasonably be aware;
4° Any additional information on the effects on humans and on the environment; II. - The following measures may be taken for substances and preparations presenting unacceptable hazards or
risks for humans or the environment, as well as for manufactured products or equipment containing them in the conditions provided for in Article L. 521-1:
1° A measure of total, provisional or partial prohibition of their production, importation, exportation, transport, placing on the market or certain uses;
2° A stipulation restricting or regulating the production, importation, exportation, placing on the market, certain uses, retrieval, regeneration, recycling, elimination, storage, transport, composition, labelling, packaging, commercial name and advertising, as well as any other condition required to preserve public health or the environment.
III. - The producers, importers or exporters of chemical substances and preparations are required, for the enforcement of the European provisions, to supply the administrative authority at intervals with precise figures on the quantities of substances, either alone or incorporated into preparations, that they have produced, imported, exported, stored, retrieved, regenerated or destroyed.
IV. - A Conseil d'Etat decree sets the conditions in which the measures provided for by the present Article are taken.
Article L521-7 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
I. - The information for which industrial or trade secrecy may not be invoked may be communicated to third parties by the administrative authority.
II. - Concerning substances declared under the terms of Article L. 521-3, the following information may not be covered by industrial or trade secrecy:
1° The trade name of the substance; 2° The name of the producer or declarant; 3° The physical-chemical properties of the substance; 4° The possibility of rendering the substance harmless; 5° The summary of the toxicological and eco-toxicological tests;
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ENVIRONMENTAL CODE 6° The degree of purity of the substance and the identity of the impurities or additives classified as hazardous by the
terms of Article L. 521-9 if these components are indispensable for the classification and labelling of the substance ; 7° The recommended methods and precautions relating to the handling, storage, transport, prevention of fires and
the other hazards the product might present, and to the emergency measures to be taken in case of accidental spilling and in case of an accident involving a person;
8° The information contained in the safety data sheet; 9° In the case of hazardous substances classified and labelled by the terms of Article L. 521-9, the methods of
analysis to be used to detect them in the environment and to determine the direct exposure of humans. III. - Any person having transmitted to the administrative authority information in relation to which they claim
industrial or trade secrecy, may indicate the information they consider as being commercially sensitive, whose diffusion could be prejudicial to them, and for which they request confidentiality in relation to all persons other than the administrative authority. In this case, justifications must be supplied to the administrative authority which will examine whether the request is well founded.
The person having transmitted the information is required to inform the administrative authority if the said person should decide to make public information in relation to which the administrative authority had recognised obligations of industrial and trade secrecy.
IV. - The administrative authority takes all useful steps to ensure that the information recognised by itself or by the competent authority of a member State of the European Community as being covered by obligations of industrial or trade secrecy is accessible only to the persons it has appointed. These persons are bound by professional secrecy in accordance with the terms set in Articles 126-13 and 226-14 of the Code pénal, except in relation to the judiciary authorities acting within the framework of criminal proceedings.
A decree sets the conditions for the protection of the secret of the full formula of preparations.
Article L521-8 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
Substances produced or placed on the market and featuring in the inventory mentioned in Article L. 521-3 are examined at the initiative of the administrative authority or in accordance with the terms of European Community decisions relating to the said inventory.
The producers or suppliers supply, at the request of the administrative authority, the technical files necessary to examine or re-examine the substances, which may be subject to the measures provided for in Article L. 521-6.
Sellers and industrial users hold at the disposal of the administrative authority the information relating to uses required to examine or re-examine the substances.
The producers and importers of the substances or of preparations containing them are required to inform the administrative authority of any new facts, resulting either from an improvement in technical and scientific knowledge or from the observation of the effects of the substances, showing new hazards or risks for humans or for the environment.
Article L521-9 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
The rules of classification, packaging and labelling of substances and preparations, and the rules for drawing up safety data sheets are defined in the conditions provided for by a Conseil d'Etat decree.
Article L521-10 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
All complementary information or verification tests required for the application of Articles L. 521-3, L. 521-4, L. 521-5 and L. 521-8 can be requested by the administrative authority of the producers or importers and at the expense of the latter.
Article L521-11 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
Expenses resulting from the conservation, examination, processing and appraisal of the information supplied in the technical files referred to in Articles L. 521-3, L. 521-5 and L. 521-8, as well as in Article L. 1342-1 of the Code de la santé publique may be charged to producers and importers.
SECTION III Identification and investigation of offences Articles L521-12 to
L521-16
Article L521-12 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
In addition to the judicial police acting in accordance with the Code de procédure pénale, the following are authorised to proceed to the inspections required to verify compliance with the obligations of this Chapter and, in the performance of their roles, to detect and investigate infringements of this Chapter and of the enactments for its application:
1° Sworn agents commissioned under the conditions determined by a Conseil d'Etat decree, belonging to the State departments for the environment, agriculture and transport;
2° Inspectors of classified facilities; 3° Agents of the State department for competition, consumption and repression of fraud;
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ENVIRONMENTAL CODE 4° Works inspectors and assessors; 5° Customs officers; 6° The agents mentioned in Article L. 1421-1 of the Code de la santé publique; 7° Inspectors of the French Agency for the Safety of Health Products mentioned in L. 5313-1 of the Code de la
santé publique; 8° Veterinary inspectors; 9° Engineers and technicians of the plant protection department; 10° The agents authorised to carry out technical inspections on board aircraft; 11° Administrators and inspectors of maritime affairs, officers of the technical and administrative body of maritime
affairs, inspectors of maritime affairs and seafarers' unions, State ship commanders and first officers, and captains of State aircraft responsible for sea surveillance.
Article L521-13 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
The agents mentioned in Article L. 521-12 have access to the establishments and professional premises in which there are activities of production, manufacture, transformation, usage, packaging, storage, deposit, transport or sale of the substances or preparations or manufactured products or equipment containing them described in Article L. 521-1, except for dwellings and parts of premises used as dwellings.
They may enter these premises between 8 am and 8 pm and, outside these times, at any moment when the premises are open to the public or when one of the activities specified above is in progress.
They also have access to the professional vehicles, ships and aircraft used for the transport of the substances or preparations.
These agents may demand to see any useful document, take a copy of it, and, either by written request or on-site, collect any information and proof required to carry out their task.
Article L521-14 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
I. - For the application of the measures provided for by this Chapter, the agents described in Article L. 521-12 may take samples with a view to having them analysed or tested.
The samples are taken in the presence of the director of the establishment or his/her representative. A Conseil d'Etat decree sets the conditions to be respected when taking samples and carrying out analyses and tests.
II. - For the application of the measures provided for by this Chapter, the agents described in Article L. 521-12 may impound, with a view to carrying out inspections, the substances or preparations or manufactured products or equipment containing them presumed to be prohibited or non-compliant with the provisions of this Chapter and with those used to enforce them.
The impounding measure may not exceed fifteen days. This period may be extended by an order of the President of the Tribunal de grande instance in the jurisdiction of the site where the substances, preparations, manufactured products or equipment are held, or of a magistrate delegated for this purpose.
The agents mentioned in Article L. 521-12 refer the matter to the competent magistrate without procedure. The magistrate rules by means of an enforceable order as a provisional measure within twenty-four hours, based on all the informational items that may justify this measure.
The order to extend the impounding measure is notified by any possible means to the holder of the impounded substances, preparations, manufactured products or equipment.
The impounded substances, preparations, manufactured products or equipment are left under the care of their holder.
The President of the Tribunal de grande instance may order the withdrawal of the impounding measure at any moment. The impounding is lifted by the authorised agent as soon as the impounded substances or preparations, manufactured products or equipment have been established as compliant with the regulations governing them.
III. - In the event of a conviction, all the costs relating to the analyses, tests or impounding measures stipulated in this Article are to be borne by the holder of the substances or preparations, manufactured products or equipment containing them.
Article L521-15 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
The substances or preparations, or the manufactured products or equipment containing them that are manufactured, imported, placed on the market, exported, used or transported in a way likely to characterise a criminal infringement of this Chapter may be forfeited following an order of the President of the Tribunal de grande instance or of the magistrate delegated by him/her, who is referred to and who rules according to the methods of procedure stipulated in Article L. 521-14. They are left in the care of their holder unless otherwise stipulated in the order.
Article L521-16 (Order no. 2001-321 of 11 April 2001 Article 1 Official Journal of 14 April 2001)
The infringements of the provisions of this Chapter and of the enactments used to enforce it are established by official reports which have probative force until proven otherwise. The official reports are addressed, under pain of being declared void, within five days following their completion, to the Procureur de la République. A copy of this report is given to the person concerned within the same time limit.
The Procureur de la République is informed beforehand of the operations envisaged with a view to detecting
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ENVIRONMENTAL CODE infringements. He or she may oppose these operations.
SECTION IV Administrative sanctions Articles L521-17 to
L521-20
Article L521-17 (Order no. 2001-321 of 11 April 2001 Article 1 IV Official Journal of 14 April 2001) (Act no. 2005-1319 of 26 October 2005 Article 3 Official Journal of 27 October 2005)
The agents proceeding to an inspection and noting a failure to comply with the obligations of this Chapter or with those of the regulations (EC) no. 304/2003, (EEC) no. 793/93 and (EC) no. 2037/2000, except for the prohibition measures or the prescriptions sanctioned in 2 of I of Article L. 521-21, write up a report which they send to the administrative authority.
Six months at the latest after a failure has been noted, the administrative authority, having first invited the person concerned to take cognisance of the file and to present his or her observations within three months, may issue a summons to the producer or importer of the substances or preparations to comply with the obligations of this law within a given period of time.
NB: At the end of the last paragraph, "this chapter" should be read instead of "this law".
Article L521-18 (Inserted by Order no. 2001-321 of 11 April 2001 Article 1 IV Official Journal of 14 April 2001)
In case of non-compliance with the instructions of the summons specified in Article L. 521-17, the administrative authority orders the payment of a fine at the most equal to 1500 Euros and a daily penalty payment of 150 Euros.
Article L521-19 (Inserted by Order no. 2001-321 of 11 April 2001 Article 1 IV Official Journal of 14 April 2001)
The fines and periodic penalty payments mentioned in Article L. 521-18 may not cover acts going back further than three years if, within this period of time, nothing has been done to identify, investigate or sanction them.
The fines and periodic penalty payments mentioned in this Article are paid to the Treasury. The sums are collected in the same way as that applied in matters of debts not relating to tax or real estate.
A Conseil d'Etat decree sets out the guarantees of procedure designed to ensure the rights of defence when the fine is inflicted, as well as the methods of settlement of the periodic penalty payments described in Article L. 521-18.
Article L521-20 (Inserted by Order no. 2001-321 of 11 April 2001 Article 1 IV Official Journal of 14 April 2001)
The decisions of the administrative authority are subject to appeal with unlimited jurisdiction.
SECTION V Criminal sanctions Articles L521-21 to
L521-24
Article L521-21 (Order no. 2001-321 of 11 April 2001 Article 1 IV Official Journal of 14 April 2001) (Act no. 2005-1319 of 26 October 2005 Article 3 Official Journal of 27 October 2005)
I. - The following acts are punishable by two years' imprisonment and a fine of 75,000 euros: 1° Knowingly supplying incorrect information likely to bring about, for the substance under consideration or the
preparations containing it, or for the manufactured products or the equipment containing it, prescriptions that are less restrictive than those to which they should have been subject; or concealing known information;
2° Not respecting the measures of prohibition or the instructions decreed in accordance with Article L. 521-6 and by the regulations (EC) no. 304/2003, (EEC) no. 793/93, (EC) no. 2037/2000;
3° Not fulfilling within the specified time limit the obligations prescribed by the summons stipulated in Article L. 521-17.
II. - Persons are also liable to the following supplementary penalties: 1° Forfeiture in accordance with 10 of Article 131-6 of the Code pénal; 2° Prohibition to practise in accordance with 11 of Article 131-6 of the Code pénal and relating to the activity in the
course of which the offence has been committed; 3° The temporary or definitive closure of the production facilities implicated; 4° The public posting or circulation of the decision pronounced under the conditions set out in Article 131-35 of the
Code pénal. III. - When the forfeiture is pronounced the court may order that the destruction of the substances or preparations be
at the expense of the person convicted. IV. - Legal entities may be declared responsible, under the conditions set out in Article 121-2 of the Code pénal, for
the offences defined in the previous paragraphs. V. - Legal entities are liable to: 1° A fine in accordance with the terms set out in Article 131-38 of the Code pénal; 2° Prohibition to practise in accordance with 2 of Article 131-39 of the same Code and relating to the activity in the
course of which the offence has been committed;
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ENVIRONMENTAL CODE 3° The penalties defined in 3, 4, 5, 6, 8 and 9 of Article 131-39 of the same Code.
Article L521-22 (Inserted by Order no. 2001-321 of 11 April 2001 Article 1 IV Official Journal of 14 April 2001)
The act of making it impossible for the civil servants or agents mentioned in Article L. 521-12 to carry out their tasks or of obstructing them in these tasks, either by refusing to let them enter the premises or by any other means, is punishable by six months' imprisonment and a fine of 7500 Euros, without prejudice to the punishments in cases of resistance to the law defined by Articles 433-6 to 433-8 of the Code pénal.
The official reports drawn up by these civil servants or agents to establish the offences defined in the previous paragraph are sent without delay to the Procureur de la République. A copy is given to the person concerned.
Article L521-23 (Inserted by Order no. 2001-321 of 11 April 2001 Article 1 IV Official Journal of 14 April 2001)
Decrees approved by the Conseil d'Etat set the conditions of application of this Chapter.
Article L521-24 (Inserted by Order no. 2001-321 of 11 April 2001 Article 1 IV Official Journal of 14 April 2001)
When a regulation or a decision of the European Community contains provisions for the enforcement of regulations (EC) no. 2455/92, (EC) no. 793/93 and (EC) no. 2037/2000 which enter the scope of this Chapter, a Conseil d'Etat decree establishes that they constitute the measures of enforcement stipulated in this Chapter.
CHAPTER II Control of the placing on the market of active biocidal substances and authorisation
to place biocidal products on the market Articles L522-2 to L522-1
Article L522-1 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
I. - The provisions of this Chapter apply to biocidal products, which is to say to active substances and preparations containing one or more active substances presented in the form in which they are delivered to the user and designed to destroy, repel or neutralise pests, prevent their action or control them in any other way, via a chemical or biological action.
II. - The list of the types and descriptions of the products in question is set by a Conseil d'Etat decree. III. - The provisions of this Chapter do not apply to: 1° The following substances and preparations in the finished state, destined for the end user and exclusively used
as: medicines for human or veterinary use mentioned in Article L. 5111-1 of the Code de la santé publique; cosmetic products as defined in Article L. 5131-1 of the Code de la santé publique; foodstuffs; animal feed;
2° Active substances and biocidal products used exclusively as active substances in phytopharmaceutical products and as phytopharmaceutical products;
3° Active substances and biocidal products used exclusively as components in medical devices; 4° The categories of active substances and biocidal products which are subject to procedures other than those
stipulated in this Chapter and which take account of the risks run by human beings and the environment. These categories are defined by a Conseil d'Etat decree;
5° Radioactive substances containing one or more radionuclides the activity of which or the concentration of which cannot be neglected for reasons of radioprotection.
IV. - In the sense of this Chapter, an active biocidal product is a chemical substance or a micro-organism, including a virus or a fungus, which exerts a general or specific action on or against pests.
V. - The following are considered as actions of placing on the market: 1° Any transfer for valuable consideration or free of charge of an active substance or a biocidal product; 2° The importation of an active substance or a biocidal product originating from a non-member State of the
European Community, with the exception of a substance in transit; 3° The storage of an active substance or a biocidal product if this storage is not followed by a dispatch outside the
customs territory of the European Community or by its disposal.
SECTION I Control of active substances Articles L522-2 to
L522-3
Article L522-2 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
I. - The placing on the market of an active biocidal product which the person responsible for placing on the market has destined for biocidal products, which is not a biocidal product per se and which does not feature on the European Community list of substances present on the European Community market at 14 May 2000, may be temporarily authorised in accordance with the procedures set by a Conseil d'Etat decree, following an examination by the French administrative authority or that of another Member State of a file accompanied by a declaration attesting that the substance will be incorporated into a biocidal product.
II. - The placing on the market of an active substance exclusively used for a biocidal product in order to conduct experiments or tests for research or development purposes is not subject to the provisions of the previous paragraph.
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ENVIRONMENTAL CODE Article L522-3 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
Without prejudice to I of Article L. 522-2, only the active substances appearing on the applicable European Community lists may be placed on the market and used in biocidal products, by virtue either of European Community regulations or of national enactments used to enforce European Community directives, under conditions set by a Conseil d'Etat decree.
The authorisation to place on the market or to use may be withdrawn or refused, after the holder or the applicant has received a summons to present his or her observations, in case of European Community-level application of the procedure of comparative evaluation or when the conditions for inclusion on the European Community lists are not fulfilled.
SECTION II Control of the placing on the market of biocidal products Articles L522-4 to
L522-7
Article L522-4 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
I. - A biocidal product is not placed on the market or used unless it has received an authorisation granted by the administrative authority. This authorisation is only granted if, among other things, the active substance(s) that it contains feature(s) on the lists mentioned in Article L. 522-3, if the conditions set for the substance(s) in these lists are fulfilled, and if the product, under normal conditions of use:
1° Is sufficiently efficacious; 2° Does not, either intrinsically or by its residues, have unacceptable effects on the health of human beings or
animals or on the environment, either directly or indirectly; 3° Does not create unacceptable resistance in the targeted organisms or cause needless suffering in vertebrates or
unacceptable effects on non-targeted organisms. II. - In addition: 1° The nature and quantity of active substances in the product and, where applicable, of impurities, of other
components and of residue, which are significant from a toxicological and eco-toxicological point of view, must be able to be determined;
2° The physical and chemical properties of the product must enable its use, storage and suitable transport. III. - The application for authorisation is accompanied by a file. The authorisation may be subject to
recommendations and requirements relating to the commercialisation and the use of the product in order to ensure respect of the abovementioned requirements.
Article L522-5 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
I. - Authorisation is granted for a limited duration which may not exceed ten years. It may be renewed; it may be re-examined and modified at any moment. In this case, the administrative authority may ask the authorisation holder to provide further information required for this re-examination. The authorisation may be withdrawn in the following cases:
1° When the active substance no longer features on the lists mentioned in Article L. 522-3; 2° When the conditions for obtaining the authorisation are no longer fulfilled; 3° When false or fallacious items have been provided as data on which basis the authorisation has been granted; 4° On the request of the authorisation holder. II. - After the authorisation has been withdrawn, the holder may be granted a period of time to dispose of, store, sell
or use existing stocks. III. - Any refusal, withdrawal or modification of an authorisation must be reasoned. Except for emergency cases,
these measures may only be implemented if the applicant or authorisation holder has received a summons to present his or her observations.
IV. - In all cases, the rights of third parties are and remain reserved.
Article L522-6 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
I. - The conditions of application of Articles L. 522-4 and L. 522-5 below are defined by a Conseil d'Etat decree. II. - Simplified procedures may be provided for by a Conseil d'Etat decree for biocidal products that only present a
low risk and for products already authorised in another Member State. III. - For products already authorised in a Member State, the administrative authority may, when issuing the
authorisation, request labelling modifications under conditions defined by a Conseil d'Etat decree. It may provisionally refuse or restrict the authorisation of these products. It may also refuse the mutual recognition of authorisations granted for certain types of products defined by a Conseil d'Etat decree, or revise or withdraw the authorisation of a product in accordance with a European Community decision.
Article L522-7 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
I. - Notwithstanding Article L. 522-4, the administrative authority may provisionally authorise the placing on the market of a biocidal product:
1° Containing a substance not featuring on the lists defined in Article L. 522-3, for purposes other than those of
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ENVIRONMENTAL CODE research and development;
2° Not meeting the requirements detailed in Article L. 522-4, with a view to limited and controlled usage if this measure seems necessary owing to a serious danger that cannot be controlled by other means.
II. - Notwithstanding Article L. 522-4, the placing on the market of a biocidal product or an active substance exclusively used in a biocidal product to conduct experiments or tests for research or development purposes is subject to particular conditions set out by a Conseil d'Etat decree.
SECTION III Miscellaneous provisions Articles L522-8 to
L522-14
Article L522-8 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
I. - The costs resulting from the storage, examination, processing and assessment of the information supplied in the declaration files described in Article L. 522-2 or during the applications for authorisation mentioned in Article L. 522-4 may be payable by the producers, importers, or those responsible for placing the product on the market.
II. - The administrative authority may demand samples of the biocidal product and its components from the producers, importers or those responsible for placing the product on the market.
III. - The administrative authority may request any further information or tests required to enforce the provisions set out in this Chapter from the person responsible for placing the product on the market, who may be obliged to bear the costs.
Article L522-9 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
I. - The use of biocidal products is forbidden under conditions other than those stipulated in the authorisation decision and mentioned on the label stipulated in IV of Article L. 522-12.
II. - A Conseil d'Etat decree defines the conditions under which a biocidal product is not authorised, with a view either to its sale to the non-professional public or to its use by this public, owing to its toxicological properties.
III. - Measures to limit or to prohibit use or sale may be taken following a decision by the European Community authorities, if there are reasons to believe that a biocidal product authorised in a Member State presents an unacceptable risk to human or animal health or to the environment. For the same reasons, the administrative authority may limit or temporarily prohibit the use or sale of a biocidal product. A Conseil d'Etat decree sets the conditions under which these limitation or prohibition measures are taken by the administrative authority.
Article L522-10 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
The holder of an authorisation is obliged to declare to the administrative authority the information concerning the active substances or the biocidal product of which he or she has knowledge or could reasonably have knowledge, and which may have consequences on the continuation of the authorisation.
Article L522-11 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
A Conseil d'Etat decree defines the rules for the protection of data and the conditions under which the administrative authority may put to the use of other applicants the information contained in the files on substances and biocidal products.
Article L522-12 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
I. - The provisions set out in I, III and IV of Article L. 521-7 of this Code apply to the transmission of confidential data concerning active substances and biocidal products.
II. - The following information does not fall within the domain of industrial and commercial secrecy: a) The name and address of the applicant; b) The name and address of the manufacturer of the biocidal product; c) The name and address of the manufacturer of the active substance; d) The denominations and the content level of the active substance(s) and the denomination of the biocidal product; e) The name of the other substances classified as hazardous in accordance with Article L. 521-9; f) The physical
and chemical data concerning the active substance and the biocidal product; g) The means employed to make the active substance or the biocidal product harmless; h) The summary of the test results required in accordance with Article L. 522-4, designed to establish the efficacy of
the substance or the product and its effects on human beings, animals and the environment, as well as its ability to bring about resistance, where applicable;
i) The recommended methods and precautions for the reduction of risks in handling, warehousing and transport, as well as fire or other risks;
j) The safety data sheets; k) The analysis methods described in Article L. 522-4-II of the Environmental Code; l) The methods for disposing of the product and its packaging; m) The procedures to be followed and the measures to be taken in case the product is spread or in case of a leak;
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ENVIRONMENTAL CODE n) First aid instructions in case of injuries. III. - The active substances which are micro-organisms and the biocidal products that contain them are subject to
the measures prohibiting them from being placed on the market or used set out in II of Article L. 521-6 of this Code. IV. - Provisions to complement those in Article L. 521-9 of this Code, relating to classification, packaging, labelling
and safety data sheets, are defined by a Conseil d'Etat decree.
Article L522-13 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
Notwithstanding the provisions set out in Article L. 1342-1 of the Code de la santé publique, the person responsible for placing a biocidal product on the market must, under the conditions defined by a Conseil d'Etat decree, provide an approved body with the information required about this product, making it possible to prevent effects on the health or to respond to any medical request for the treatment of disorders caused by this product or any request from the emergency services depending on the administrative authority.
Article L522-14 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
Without prejudice to Article L. 121-1 of the Code de la consommation, a Conseil d'Etat decree specifies the compulsory information and that which may not appear in advertising for biocidal products.
SECTION IV Inspections and sanctions Articles L522-15 to
L522-18
Article L522-15 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
The provisions of Articles L. 521-12 to L. 521-20 and Article L. 521-22 of this Code apply to inspections, and to the detection and investigation of infringements of the provisions of this Chapter.
Article L522-16 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
I. - The following acts are punishable by two years' imprisonment and a fine of 75,000 Euros: 1° Placing an active biocidal substance on the market without the provisional authorisation defined in Article L.
522-2; 2° Placing a biocidal product on the market without the authorisation defined in I of Article L. 522-4; 3° Placing an active substance or a biocidal product on the market in the cases defined in II of Article L. 522-7
without fulfilling the conditions stipulated or used for the application of this Article; 4° Knowingly providing the administrative authority with incorrect information likely to bring about, for the active
substance under consideration or the biocidal products containing it, prescriptions that are less restrictive than those to which they should have been subject; or concealing information known to the company;
5° Knowingly selling a biocidal product to the non-professional public in ignorance of the provisions of II of Article L. 522-9;
6° Selling a biocidal product without respecting the limitation or prohibition measures specified in III of Article L. 522-9.
II. - The following acts are punishable by six months' imprisonment and a fine of 7,500 Euros: 1° Using a biocidal product that is unauthorised in accordance with I of Article L. 522-4; 2° Using a biocidal product without respecting the conditions stipulated in I of Article L. 522-9 or the limitation or
prohibition measures stipulated in III of Article L. 522-9; 3° Not sending to an approved body the information described in Article L. 522-13; 4° Not featuring the labelling information stipulated in IV of Article L. 522-12. III. - Persons are also liable to the further punishments defined in Article L. 521-21 of this Code. IV. - Legal entities may be declared responsible, under the conditions set in Article 121-2 of the Code pénal, for the
offences defined in the previous paragraphs. They are liable to the punishments applied to legal entities defined in Article L. 521-21 of this Code.
Article L522-17 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
Decrees approved by the Conseil d'Etat set the conditions of application of this Chapter.
Article L522-18 (Inserted by Order no. 2001-321 of 11 April 2001 Article 4 Official Journal of 14 April 2001)
I. - The active substances not featuring on the European Community list of substances present on the European Community market at 14 May 2000 as active substances of a biocidal product for purposes other than research and development, and the biocidal products containing them, are subject to the provisions of this Chapter.
II. - The active substances appearing on the abovementioned list and the products containing them are not subject to the provisions of Articles L. 522-3 and L. 522-4 until a decision has been made to include these active substances and the biocidal products containing them on the lists mentioned in L. 522-3, under the conditions defined by the European Community regulations. The other provisions of this Chapter are applicable to these substances.
In the event of a decision not to include the active substances on the lists mentioned in Article L. 522-3, it is
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ENVIRONMENTAL CODE prohibited to place the substances and products on the market, under conditions defined by a Conseil d'Etat decree.
For the biocidal products present on the market at 14 May 2000, Article L. 522-13 comes into force on 14 May 2003.
TITLE III Genetically Modified Organisms Articles L531-1 to
L537-1
CHAPTER I General provisions Articles L531-1 to
L531-5
Article L531-1 (Act no. 2003-591 of 2 July 2003 Article 31 III 18° Official Journal of 3 July 2003)
In the sense of this Title and of Article L. 125-3, the following meanings are given: 1° Organism: any cellular, non-cellular or multi-cellular biological entity capable of reproducing or of transferring
genetic material; this definition encompasses micro-organisms, including viruses; 2° Genetically modified organism: organism whose genetic material has been modified other than by natural
multiplication or recombination; 3° Use: any operation or set of operations in the course of which organisms are genetically modified or in the course
of which genetically modified organisms are grown, used, stored, destroyed or disposed of.
Article L531-2 (Act no. 2003-591 of 2 July 2003 Article 31 III 18° Official Journal of 3 July 2003)
Not subject to the provisions of this Title and of Article L. 125-3 are the genetically modified organisms obtained by techniques which are not considered, owing to their natural character, as bringing about a genetic modification, or by techniques which have been traditionally used without any noted drawbacks with regard to public health or the environment.
The list of these techniques is set by decree after a decision by the genetic engineering commission.
Article L531-3 The genetic engineering commission is responsible for evaluating the risks presented by genetically modified
organisms and the processes used to obtain them, as well as the potential hazards linked with the use of genetic engineering techniques.
It proposes the desirable containment measures to prevent risks linked with the use of these organisms, processes and techniques. It may delegate one or more of its members to visit the facilities in the framework of the examination of applications for approval.
The genetic engineering commission is composed of persons appointed by virtue of their scientific competence in the domains relating to genetic engineering and to public health and the environment, as well as a member of the Parliamentary office for the evaluation of scientific and technological choices. Scientists competent in matters of environmental protection and public health represent at least one third of the commission.
It calls upon other experts where needs be. The commission writes up an annual report which is sent by the Government to the two assemblies. The members
of the commission may attach a personal contribution to the annual report.
Article L531-4 The commission for the study of the release of products originating from bio-molecular engineering is responsible
for evaluating the risks linked with the deliberate release of genetically modified organisms. It also contributes to the evaluation of the risks linked with the placing on the market of products wholly or partially
composed of genetically modified organisms, and to the definition of their conditions of use and their presentation. At least half of its members are persons who are competent in scientific matters along with a member of the
Parliamentary office for the evaluation of scientific and technological choices; it includes representatives of the environmental protection associations approved under Article L. 141-1, consumer associations, and the employee groups and industrial boards concerned.
The commission writes up an annual report which is sent by the Government to the two assemblies. The members of the commission may attach a personal contribution to the annual report.
Article L531-5 Decrees specify the composition, attributions and rules of operation of the commissions specified in Articles L.
531-3 and L. 531-4.
CHAPTER II Contained use of genetically modified organisms Articles L532-1 to
L532-6
Article L532-1 Genetically modified organisms, in particular micro-organisms, are classified into distinct groups according to the
risks they present to public health and the environment, notably their pathogenicity. The criteria of this classification are set by decree after a decision by the genetic engineering commission.
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ENVIRONMENTAL CODE Article L532-2
Subject to the provisions of Chapters III, V, VI and VII of this Title and of Articles L. 536-4 to L. 537-1, any use for the purposes of education, research or industrial production of genetically modified organisms presenting dangers or drawbacks for public health or the environment is to be contained.
The methods of this containment, which may use physical, chemical or biological barriers, are defined according to the classification of the genetically modified organisms used, after a decision by the genetic engineering commission, where applicable.
Article L532-3 Any use of genetically modified organisms for the purposes of research, development or education in a public or
private facility, and without the resulting products being placed on the market except free of charge and for testing purposes, is subject to approval.
This approval, granted to the operator of the facility by the administrative authority, is subject to compliance with the technical prescriptions defining, among other things, the containment measures required for the protection of public health and the environment and the means of intervention in the event of an incident a new approval must be applied for in case of a notable modification of the conditions of use of genetically modified organisms that have been subject to approval.
A Conseil d'Etat decree determines the procedure by which the approval is granted and the methods by which the genetic engineering commission is consulted and by which the public is informed, as well as the time limits within which the approval is granted or on the expiry of which it is considered as granted.
Article L532-4 I. - When the approval covers the first use of genetically modified organisms in a facility, the operator puts an
information file at the disposal of the public. II. - This file, submitted to the town hall of the town where the facility is located, is stamped by the administrative
authority. Excluding any information covered by industrial or commercial secrecy or protected by the law, or the disclosure of which could harm the interests of the operator, it contains:
1° General information about the activity of the facility and about the purpose of the research submitted for an approval application;
2° Any useful information about the classification of the genetically modified organisms that may be used at the facility, and about the containment measures, the intervention means in case of an incident, and the technical prescriptions upon which the approval is dependent in accordance with Article L. 532-3;
3° Where applicable, the summary of the decision given by the genetic engineering commission regarding the approval application;
4° The address of the genetic engineering commission, where the public may make any observations. III. - A synthesis of the observations collected and information about any actions to be taken following these
observations feature in the annual report mentioned in Article L. 531-3. IV. - The provisions of this Article do not apply if the approval only covers the use of non-pathogenic genetically
modified organisms presenting no serious risk to public health or the environment. V. - A Conseil d'Etat decree sets the conditions of application of this Article.
Article L532-5 In all cases where a new evaluation of the dangers or drawbacks for public health or the environment of an
approved use of genetically modified organisms so justifies, the administrative authority may, at the cost of the approval holder and after n assessment by the genetic engineering commission:
1° Impose the modification of the technical prescriptions; 2° Suspend the approval for the period of time required to implement measures to remove these dangers or
drawbacks; 3° Withdraw the approval if these dangers or drawbacks are such that no measure can remove them.
Article L532-6 (Order no. 2000-916 of 19 September 2000 annexe Official Journal of 22 September 2000 in force on 1st January 2002)
Any application for approval or for use of genetically modified organisms for the purposes of research, education or development is accompanied by a tax representing the costs of examination and allocated to the general budget of the State. This tax is payable when the file is submitted.
It is set at 1,525 euros per file. This amount is reduced to 305 euros when the approval application concerns a contained use other than the first use.
The collection of and disputes relating to the tax instituted in this Article are supervised by the accountants of the Treasury in accordance with the terms set in Articles 81 to 95 of decree no. 62-1587 of 29 December 1962 establishing the general regulations of public accounting.
CHAPTER III Deliberate release and placing on the market of genetically modified organisms Articles L533-1 to
L533-7
Article L533-1 The transport of genetically modified organisms, in all its forms, is not subject to the provisions of this Chapter and
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ENVIRONMENTAL CODE Chapters V, VI and VII.
Article L533-2 In the sense of this Chapter, by deliberate release is meant any intentional introduction into the environment, for the
purposes of research or development or any purpose other than placing on the market, of a genetically modified organisms or a combination of genetically modified organisms.
Article L533-3 Any deliberate release or any coordinated programme of such releases is subject to prior authorisation. This authorisation is granted by the administrative authority after examination of the risks to public health or the
environment presented by release. It may be accompanied by prescriptions. It is only valid for the operation for which it has been solicited.
Article L533-4 In the sense of this Chapter, by placing on the market is meant the placing at the disposal of third parties, either for
valuable consideration or free of charge, of products wholly or partially composed of genetically modified organisms.
Article L533-5 Placing on the market must be subject to prior authorisation. This authorisation is granted by the administrative authority after examination of the risks to public health or the
environment presented by placing on the market. It may be accompanied by prescriptions. It is only valid for the use it stipulates.
Article L533-6 The authorisations granted by the other Member States of the European Union under enactments used by these
States or other States party to the agreement on European Economic Space in accordance with directive no. 90-220 (EEC) of 23 April 1990 are considered as representing authorisation under this Chapter.
However, when there are valid reasons to consider that a product authorised by another Member State or another party State presents risks to public health or the environment, the administrative authority may temporarily limit or prohibit the use or placing on the market of this product.
Article L533-7 The Conseil d'Etat decree specified in Article L. 537-1 sets the conditions under which, for the categories of
products subject to specific authorisation or accreditation procedures prior to being placed on the market, a single authorisation is granted under these specific procedures and this Chapter.
CHAPTER IV Biological monitoring of the territory Article L534-1
Article L534-1 The provisions relating to the monitoring of plants, including seeds, antiparasitic products for agricultural use and
similar products, fertilizers and growing mediums wholly or partially composed of genetically modified organisms released into the environment or placed on the market, are detailed in the Code rural (Book II, Title V, Chapter I).
CHAPTER V Administrative inspections and sanctions Articles L535-1 to
L535-8
Article L535-1 Any person who has obtained an authorisation mentioned in Articles L. 533-3 and L. 533-5 is obliged to inform the
administration of any new element likely to modify the assessment of the risk to public health and the environment. Where applicable, he or she takes the measures required to protect public health or the environment.
Article L535-2 I. - In every case where a new evaluation of the risks caused by the presence of genetically modified organisms to
public health or the environment so justifies, the administrative authority may, at the cost of the authorisation holder or the holders of the genetically modified organisms:
1° Suspend the authorisation pending further information and, if needs be, order the withdrawal from sale of the products or prohibit their use;
2° Impose modifications to the conditions of deliberate release; 3° Withdraw the authorisation; 4° Order the destruction of the genetically modified organisms and, in the event of a failure by the beneficiary or of
the holder of the authorisation, proceed to this destruction ex officio. II. - Except in emergency cases, these measures may only be implemented if the beneficiary has been given the
opportunity to present his or her observations.
Article L535-3 I. - The applicant for an authorisation to release or place on the market may indicate to the administration the
information supplied to back up his or her application, which, if disclosed, may harm his or her interests or which relate to secrets protected by the law. Information recognised by the administrative authority as confidential must not be
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ENVIRONMENTAL CODE communicated to third parties.
II. - The following may not be considered as confidential: 1° The information supplied to back up an application for authorisation to release and pertaining to: a) The name and address of the applicant; b) The summary description of the genetically modified organism(s); c) The purpose of the release and the place where it will be carried out; d) The methods and plans for monitoring the operations and for intervention in case of emergency; e) The evaluation of the effects and risks to human beings and the environment. 2° The information supplied to back up an application for authorisation to place on the market and pertaining to: a) The name and address of the applicant; b) The nature of the product and the summary description of the genetically modified organism(s) used in its
composition; c) The conditions and precautions of use; d) The evaluation of the effects and risks to human beings and the environment. III. - The administrative authority is authorised to send the European Commission all the necessary information,
including the information recognised as confidential, in accordance with I of this Article; in this latter case, when this information is sent, the confidential nature of the information must be indicated.
IV. - The provisions of this Article do not apply to activities covered by national defence secrecy.
Article L535-4 (Order no. 2000-916 of 19 September 2000 annexe Official Journal of 22 September 2000 in force on 1st January 2002)
I. - Any application for authorisation to release or place on the market is accompanied by a tax representing the costs of examination and allocated to the general budget of the State. It is payable when the application is submitted.
II. - This tax is set at 1 525 euros per application file. This amount is reduced to 610 euros: 1° When authorisation is requested for a release that has already been authorised less than one year previously; 2° In any application to modify the use of a product wholly or partially composed of genetically modified organisms
which has previously received authorisation to be placed on the market. III. - The collection of and the disputes relating to the tax instituted in this Article are followed by the accountants of
the Treasury in accordance with the terms set in Articles 81 to 95 of decree no. 62-1587 of 29 December 1962 establishing the general regulations of public accounting.
Article L535-5 I. - Independently of the criminal proceedings which may be brought and the measures set out in Article L. 535-2,
when the prescriptions imposed by the authorisation are not respected, the competent authority issues a summons to the beneficiary of the authorisation to fulfil these obligations within a fixed period of time.
II. - If, when the set time limit has expired, the beneficiary of the authorisation has not complied with this order, the competent authority may:
1° Oblige the beneficiary of the authorisation to deposit with a public accountant a sum covering the amount of the works to be accomplished. This sum will be restored to the operator as and when the prescribed measures are implemented; this sum is collected in the same way as that applied in matters of debts not relating to tax or real estate;
2° Proceed ex officio, at the cost of the beneficiary of the authorisation, to the implementation of the prescribed measures;
3° Suspend the authorisation until the implementation of the conditions imposed and, where necessary, take the necessary provisional measures.
III. - The sums deposited in accordance with the provisions of 1° of II may be used to pay the expenses incurred due to the implementation ex officio of the measures set out in 2° and 3° of II of this Article.
Article L535-6 Independently of the criminal proceedings which may be brought, when an intentional release has taken place
without the authorisation required by this Title, the administrative authority orders its suspension. In the event of a serious threat to public health or the environment, it may set provisional measures to prevent the
dangers of release or, where necessary, proceed ex officio and at the cost of the person responsible for the release, to the destruction of the genetically modified organisms.
Article L535-7 Independently of the criminal proceedings which may be brought, the administrative authority may order the
impounding or the confiscation of the products placed on the market without authorisation. In the event of a serious threat to public health or the environment, it may impose any provisional measure to
ensure the protection of public health or the environment or, where necessary, proceed ex officio to the destruction of the products placed on the market. The cost of these measures is to be borne by the person responsible for placing them on the market.
Article L535-8 For the recovery of the deposits defined in 1° of II of Article L. 535-5 or the loans granted by the State for the
implementation of the measures set out in 2° and 3° of II of Article L. 535-5 and Articles L. 535-6 and L. 535-7, the State benefits from a privilege of the same rank as that stipulated in Article 1920 of the Code général des impôts.
When the enforcement of an order by the administrative authority is subject to an objection lodged before the
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ENVIRONMENTAL CODE administrative judge, the president of the administrative tribunal or the magistrate he or she delegates may, in a summary procedure, notwithstanding this opposition, on the request of the State representative or any interested party, decide that this action is not suspensive, when the motives put forward by the operator do not seem serious. The president of the tribunal makes his or her decision within fifteen days following referral.
CHAPTER VI Criminal provisions Articles L536-1 to
L536-7
SECTION I Investigation of offences Articles L536-1 to
L536-2
Article L536-1 (Act no. 2003-591 of 2 July 2003 Article 31 III 18° Official Journal of 3 July 2003)
In addition to the judicial police officers acting in accordance with the provisions of the Code de procédure pénale, civil servants of the technical corps of the State, officers holding a technical qualification or agents authorised for this purpose and sworn under the conditions set by a Conseil d'Etat decree may identify and make an official report on infringements of the provisions of Articles L. 125-3, L. 532-3, L. 532-4, L. 532-5, L. 532-6, L. 533-2 and L. 533-3 and the enactments for their application.
To fulfil their role, the agents mentioned in this Article have access to the facilities and places where the described operations are carried out, except for premises used as dwellings.
These agents may access these facilities and these places at any time when a release operation is in progress and, in other cases, between 8 am and 8 pm. The Procureur de la République is advised of this beforehand and gives them any necessary instructions where applicable.
The official reports are sent without delay to the Procureur de la République. A copy is sent to the interested party and to the authority competent to grant authorisation for deliberate release. These reports have probative force unless proven otherwise.
Article L536-2 The identification and investigation of infringements of the provisions of Articles L. 533-4 to L. 533-7 and the
enactments for their application are, depending on the products under consideration, carried out by the competent agents in accordance with the laws applying to these products and under the conditions provided by these laws.
SECTION II Sanctions Articles L536-3 to
L536-7
Article L536-3 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
The act of operating a facility using genetically modified organisms for the purposes of research, development or education without the approval required in accordance with Article L. 532-3, or in breach of the technical prescriptions to which this approval is subject, is punishable by one year's imprisonment and a fine of 75 000 euros.
In case of conviction, the court may prohibit the facility from operating. The prohibition ceases its effect if an approval is granted at a later date under the conditions provided by this Title. The provisional implementation of the prohibition may be ordered.
The act of operating a facility using genetically modified organisms for the purposes of research or education in breach of the prescriptions imposed in pursuance to Article L. 532-5, or in breach of a measure for the suspension or withdrawal of an approval for the application of 2° and 3° of Article L. 532-5, is punishable by two years' imprisonment and a fine of 150 000 euros.
In case of conviction, the court may prohibit the facility from operating.
Article L536-4 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
The following acts without the required authorisation are punishable by one year's imprisonment and a fine of 75 000 euros:
1° The deliberate release of genetically modified organisms or a combination of genetically modified organisms; 2° Placing on the market a product consisting in genetically modified organisms or containing such organisms.
Article L536-5 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
The act of not complying with a measure for the suspension, withdrawal, prohibition or impounding in application of Articles L. 535-2, L. 535-5 or L. 535-6 is punishable by two years' imprisonment and a fine of 150 000 euros.
The act of continuing a deliberate release or placing on the market without complying with a summons for the
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ENVIRONMENTAL CODE application of Article L. 535-5 is punishable by six months' imprisonment and a fine of 75 000 euros.
Article L536-6 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
The act of obstructing the fulfilment of the role of the agents mentioned in Articles L. 536-1 and L. 536-2 is punishable by one year's imprisonment and a fine of 15 000 euros.
Article L536-7 In case of conviction for an infringement of the provisions of this Chapter, the court may order, at the expense of the
convicted person, the publication in full or in extracts of his or her decision and, possibly, the circulation of a message, the terms of which he or she sets, informing the public of the reasons for and the content of his or her decision, in one or more journals designated by him or her, as well as its display under the conditions of and under the penalties provided by, depending on the case, Articles 131-35 and 434-39 of the Code pénal, without, however, the cost of this publicity exceeding the maximum amount of the fine.
CHAPTER VII Miscellaneous provisions Article L537-1
Article L537-1 The methods for the application of Chapters III, V and VI of this Title are set by a Conseil d'Etat decree.
TITLE IV Waste Articles L541-1 to
L542-14
CHAPTER I Disposal of waste and recovery of materials Articles L541-1 to
L541-50
SECTION I General provisions Articles L541-1 to
L541-8
Article L541-1 (Act no. 2003-591 of 2 July 2003 Article 31 III 19° Official Journal of 3 July 2003)
I. -The purpose of the provisions of this Chapter and of Article L. 125-1 is: 1° To prevent or reduce the production and noxiousness of waste, in particular by acting on the manufacture and on
the distribution of products; 2° To organise the transport of waste and to limit it in terms of distance and volume; 3° To recover waste by reuse, recycling or any other action aiming to obtain reusable materials or energy from
waste; 4° To ensure that the public is informed of the effects on the environment and public health of operations to produce
and dispose of waste, subject to the rules of confidentiality provided by the law, as well as the measures designed to prevent or compensate for the harmful effects of waste.
II. - For the purposes of this Chapter, waste is defined as any residue of a process of production, transformation or use, any substance, material, product or more generally any movable goods abandoned or destined to be abandoned by its holder.
III. - For the purposes of this Chapter, ultimate waste is defined as waste, either resulting or not from the treatment of waste, which is not likely to be treated under the technical and economic conditions of the moment, notably by the extraction of the reusable part or by the reduction of its pollutant or hazardous character.
Article L541-2 Any person who produces or possesses waste under conditions likely to produce harmful effects on soils, flora and
fauna, to damage sites or landscapes, to pollute the air or water, to cause noise and odours and, in general, to harm human health or the environment, is obliged to dispose of it or have it disposed of in accordance with the provisions of this Chapter, under the conditions required to avoid the said effects.
The disposal of waste includes the operations of collection, transport, storage, sorting and treatment required for the recovery of reusable elements and materials or energy, as well as for the deposit or discharge into the natural environment of all other products under the conditions required to avoid the nuisances mentioned in the previous paragraph.
Article L541-3 (Act no. 2003-699 of 30 July 2003 Article 32 Official Journal of 31 July 2003)
In case of soil pollution or risk of soil pollution, or in cases where waste is abandoned, deposited or treated contrary to the prescriptions of this Chapter and of the rules for its application, the authority with policing powers may, after a summons has been issued, carry out the necessary works ex officio and at the cost of the person responsible. The implementation of the works thus ordered may be entrusted by the Minister for the environment to the Environment and
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ENVIRONMENTAL CODE Energy Management Agency. The authority with policing powers may also oblige the person responsible to deposit with a public accountant a sum covering the amount of the works to be carried out, which sum will be restored as and when the works are carried out. The deposited sums may, where necessary, be used to pay the costs brought about by the execution ex officio of the works. When the Environment and Energy Management Agency intervenes in the works thus ordered, the deposited sums are set aside for it at its request.
Where applicable, these sums will be recovered in the same way as that applied for debts not relating to taxes or real estate. For this recovery, the State enjoys a privilege of the same rank as that provided for in Article 1920 of the Code général des impôts.
When the enforcement of an order by the administrative authority is subject to an objection lodged before the administrative judge, the president of the administrative tribunal or the magistrate he or she delegates may, in a summary procedure, notwithstanding this opposition, on the request of the authority with policing powers or any interested party, decide that this action is not suspensive, when the motives put forward by the operator do not seem serious. The President of the tribunal must give a decision within fifteen days being referred to him or her.
Abandonment is considered as any act, under cover of a transfer for valuable consideration or free of charge, aiming to protect its author from the stipulations of this Chapter and the regulations for its application.
When the operator of a waste disposal facility is subject to an order in application of this Article or Article L. 514-1, he or she may not obtain an authorisation to operate another waste disposal facility before paying the deposit.
When, owing to the disappearance or insolvency of the producer or holder of waste, the implementation of the provisions of the first paragraph has not led to the rehabilitation of the site polluted by this waste, the State may, with the possible financial assistance of the local authorities, entrust this rehabilitation to the Environment and Energy Management Agency.
The works mentioned in the paragraph above and, where appropriate, the acquisition of the real-estate assets, may be declared to be of public utility on the request of the State. The declaration of public utility is decided upon after consultation of the interested local authorities and a public enquiry conducted in the manner provided for by the Code de l'expropriation pour cause d'utilité publique. When one of the interested local authorities, the commissaire enquêteur or the enquiry commission has issued an unfavourable opinion, the declaration of public utility is decided upon by a Conseil d'Etat decree.
Article L541-4 The provisions of this Chapter apply without prejudice to the special provisions that concern, in particular, classified
facilities for the protection of the environment, radioactive waste, wastewater, gas effluents, animal corpses, aircraft wrecks, shipwrecks, dumping, and discharges from ships. They do not prevent the liability that each person incurs owing to damage caused to other people, particularly by the disposal of waste that he or she has held or transported or which originates from products that he or she has manufactured.
Article L541-5 The costs corresponding to the implementation of the technical analyses, assessments or tests required for the
application of this Chapter are to be borne, depending on the case, by the holder, carrier, producer, disposer, exporter or importer.
Article L541-6 When legal entities under public law act either materially or financially to attenuate the damage caused by an
incident or accident linked with a waste-disposal operation or to prevent this damage from being aggravated, these entities are entitled to reimbursement from the persons responsible for this incident or accident of the costs incurred, without prejudice to compensation for other damage suffered. In this respect, they may claim for damages before the criminal courts referred to for proceedings following the incident or accident.
This action is without prejudice to the rights of environmental protection associations approved under Article L. 141-1.
Article L541-7 The companies which produce, import, export, dispose of or which transport, engage in brokerage or trading
operations of waste belonging to the categories set by decree as being able, either as they are or when they are disposed of, to cause nuisances such as those mentioned in Article L. 541-2, are obliged to provide the administration with all information about the origin, nature, characteristics, quantities, destination and methods of disposal of the waste that they produce, hand over to third parties, or handle.
Article L541-8 The transport and the brokerage or trading of waste described in Article L. 541-7 are, under the conditions set by a
Conseil d'Etat decree, regulated and subject either to authorisation from the administrative authority as soon as the waste presents serious risks or drawbacks for the interests protected by this section, or to declaration if they do not present such risks or drawbacks.
The transport and the brokerage or trading of waste subject to declaration or authorisation must respect the objectives described in Article L. 541-1.
SECTION II Production and distribution of waste-generating products Articles L541-9 to
L541-10-2
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ENVIRONMENTAL CODE Article L541-9
Producers, importers or exporters must prove that the waste generated at any stage by the products that they manufacture, import or export are of a nature to be disposed of under the conditions stipulated in Article L. 541-2. The administration is entitled to demand from them any useful information about the methods of disposal and about the consequences of their use.
Article L541-10 The manufacture, possession with a view to sale, putting on sale, sale and putting at the disposal of the user, in any
form whatsoever, of waste-generating products may be regulated in order to facilitate the disposal of the said waste, or may, if necessary, be prohibited.
The producers, importers and distributors of these products or the elements and materials used for their manufacture may be obliged to pay for or contribute to the disposal of the waste generated by them.
These same producers, importer and distributors may be obliged to lend their assistance, in exchange for a fair remuneration, in the disposal the waste originating from identical or similar products put on sale or distributed prior to 18 July 1975.
The holders of the waste from the said products may be obliged to pass it to the establishments or departments designated by the administration, under the conditions that it sets.
Article L541-10-1 (Act no. 2003-1312 of 30 December 2003 Article 20 I finance acts rectification for 2003 Official Journal of 31 December 2003) (Act no. 2004-1485 of 30 December 2004 Article 61 finance acts rectification for 2004 Official Journal of 31 December 2004) (Act no. 2005-516 of 20 May 2005 Article 23 Official Journal of 21 May 2005)
As of 1st January 2005, any person or corporate entity who, free of charge and either by himself or herself or by means of another person, puts at the disposal of or distributes to individuals without first being requested to do so, printed materials (Provisions declared non-compliant with the Constitution by decision of the Conseil Constitutionnel no. 2003-488 DC of 29 December 2003) in letterboxes in the shared parts of collective housing, in commercial premises, in public spaces or on public highways, is obliged to contribute to the collection, reuse and disposal of the resultant waste. This contribution may take the form of allowances in kind. However, excluded from this contribution are the placing at the disposal of the public of information by a public service when it results exclusively from an obligation arising from a law or a regulation, or by a press publication, within the meaning assigned by article 1 of Law no.86-897 of 1st August 1986 for the reform of the legal regime of the press, and the distribution of correspondence within the meaning assigned by article L. 1 of the Code des Postes et des Télécommunications Electroniques.
In its financial form, the contribution is given to an organisation approved by the Ministers for the Environment, for the Local Authorities, for the Economy and for Industry, which pays it to the local authorities as a contribution to the costs of collection, reuse and disposal that they bear.
The contribution in kind is based on the principle of voluntary work of the public inter-commune cooperation establishments for the disposal of waste. It consists in the set-up of communication areas for those inter-commune cooperation establishments carrying out household waste disposal who so wish. These communication areas are used to promote the collection, reuse and disposal of waste.
The financial contributions and those in kind are set according to a scale fixed by decree. The person or organisation that does not voluntarily discharge this contribution is subject to the tax provided for in 9
of I of article 266 sexies of the Code des Douanes. The methods of application of the present article are set by decree.
Article L541-10-2 (Inserted by Law no. 2005-1720 of 30 December 2005 Article 87finance acts rectification for 2005 Official Journal of 31 December 2005)
As of 1st January 2006, any person who professionally manufactures, imports or introduces onto the national market electric or electronic household appliances concerned by the categories mentioned in annexe I A and annexe I B of Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 relating to electric and electronic appliance waste, is obliged to provide for or contribute to the collection, removal and treatment of electric or electronic household appliance waste, irrespective of the date on which they were put on the market. In the event that the appliances are sold under the brand name of a reseller, this reseller is obliged to provide for or contribute to the collection, removal and treatment of electric or electronic household appliance waste in the place of the person who manufactures, imports or introduces these appliances onto the market.
The costs of selective collection of electric or electronic household appliance waste borne by the local authorities are compensated by an approved coordinating body which pays them the fraction equivalent to the financial contribution it receives from the people mentioned in the first paragraph.
During a transitory period running from 1st January 2006 to 13 February 2011, and to 13 February 2013 for some of these appliances appearing on a list fixed by decree of the Ministers for Ecology, for the Economy, for Industry and for Consumption, the people mentioned in the first paragraph and their buyers display, as well as the price excluding taxes, the unit costs borne for the disposal of this waste, at the bottom of the sales invoices of any new electric and electronic household appliance.
The disposal of this waste from selective collection is accomplished by systems to which these people financially
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ENVIRONMENTAL CODE contribute in a proportional way and which are approved by joint rulings of the Ministers for the Economy, for Industry, for Ecology and for the Local Authorities.
These unit costs do not exceed the costs actually borne and may not be subject to reduction. The buyers transfer these unit costs identically to the end consumer and inform them by all means provided for in article L. 133-3 of the Code de la Consommation.
SECTION III Waste disposal Articles L541-11 to
L541-39
Subsección 1 Waste disposal plans Articles L541-11 to
L541-15
Article L541-11 National disposal plans must be set up by the Minister for the environment for certain categories of waste, the list of
which is set by a Conseil d'Etat decree, according to their degree of noxiousness or their specific treatment and storage features.
Representatives of the local authorities concerned, professional organisations contributing to the production and disposal of waste, and the environmental protection associations approved under Article L. 141-1 take part in the drawing up of these plans along with representatives of the State and the public bodies concerned, within a plan commission.
The plans thus drawn up are placed at the disposal of the public for two months. They are then modified, if needs be, to take account of the observations expressed and published. The purpose of these plans is to create coordinated assemblies of waste disposal facilities and to list the priorities to
be chosen in order to achieve the objectives defined in Article L. 541-1.
Article L541-12 The region participates in waste disposal policy under the conditions set by the present Chapter. In this capacity, it can facilitate all ultimate waste disposal operations and, in particular, under the conditions set out
by the Code général des collectivités territoriales (first part, Book V, Title II), acquire shares in companies set up with a view to creating or managing ultimate waste storage facilities.
Article L541-13 (Act no. 2002-276 of 27 February 2002 Article 109 IV a Official Journal of 28 February 2002) (Act no. 2004-809 of 13 August 2004 Article 47 Official Journal of 17 August 2004, in force on 1st January 2005)
I. - Each region is covered by a regional or interregional plan for the disposal of special industrial waste. II. - To achieve the objectives described in Articles L. 541-1 and L. 541-24, the plan includes: 1° A prospective inventory, with a term of ten years, of the quantities of waste to be disposed of according to its
origin, nature and composition; 2° A list of existing facilities for the disposal of this waste; 3° A reference to the facilities that it seems necessary to set up in order to achieve the objectives outlined above; 4° The priorities required to achieve these objectives, bearing in mind the foreseeable economic and technological
evolutions. III. - Among the priorities chosen the plan must provide for a storage centre for this waste. IV. - The plan takes account of the needs and capacities of the neighbouring zones outside its scope of application. V. - The draft plan is drawn up at the initiative and under the responsibility of the President of the Regional Council. VI. - The draft plan is submitted for opinion to a commission composed of representatives of the local authorities,
the State and the public bodies concerned, professional organisations contributing to the production and disposal of the waste, and the approved environmental protection associations. It is also submitted for opinion to the neighbouring Regional Councils. It may be modified to take account of these opinions. If, under the conditions provided for in article L. 541-15, the State draws up this plan, the opinion of the regional council is also sought.
VII. - The draft plan is then made available to the public for two months, then approved by decision of the Regional Council, and published.
NB: Law 2004-809 of 13 August 2004, article 48: transitory provisions concerning household waste disposal plans.
Article L541-14 (Act no. 2004-809 of 13 August 2004 Article 45 I Official Journal of 17 August 2004, in force on 1st January 2005) (Order no. 2004-637 of 1 July 2004 Article 34-5 Official Journal of 2 July 2004, in force on 1st July 2006) (Act no. 2004-1343 of 9 December 2004 Article 78 XXXII 4 Official Journal of 10 December 2004, in force on 1st July 2005)
I. - Each département is covered by a département or inter-département plan for the disposal of household and other waste mentioned in Article L. 2224-14 of the Code Général des Collectivités Territoriales. The Ile de France region is covered by a regional plan.
II. - In order to achieve the objectives described in Articles L. 541-1 and L. 541-24, the plan: 1° Included an inventory of the types, quantities and origins of the waste to be disposed of, including via its reuse,
and of the appropriate existing facilities;
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ENVIRONMENTAL CODE 2° Lists the orientation documents and programmes of the legal entities under public law and their concessionaries
in the waste sector; 3° Lists the priorities to be chosen, bearing in mind, in particular, foreseeable demographic and economic
evolutions: a) For the set-up of new facilities, and may indicate the geographical areas that seem best suited for this purpose; b) For the collection, sorting and treatment of waste in order to guarantee a high level of environmental protection
bearing in mind the economic and financial means required to implement them. III. - The plan takes account of the needs and capacities of the neighbouring zones outside its scope of application
and the inter-commune cooperation proposals. IV. - Among the priorities chosen, it must provide for centres for the storage of ultimate waste originating from the
treatment of household and similar waste. V. - The draft plan is drawn up on the initiative and under the responsibility of the President of the Conseil Général,
or, in the Ile de France region, the President of the regional council. The local authorities or their groupings with competence in waste disposal or treatment and, in the Ile de France region, the départements, are associated with drawing it up.
VI. - It is drawn up following consultation with a consultative committee composed of representatives of the communes and their groups, the Conseil Général, the State, interested public bodies, professionals concerned, approved environmental protection associations and, in the Ile de France region, the regional council and the Conseils Généraux and approved environmental protection associations.
VII. - The draft project is submitted for opinion to the State representative in the département, to the local commission competent in environmental matters and health risk and technological risk and to the Conseils Généraux of the neighbouring départements. In Ile de France, it is submitted for opinion to the State representative in the region, to the Conseils Généraux and to the local commissions competent in environmental matters and health risk and technological risk located on the territory of the region. It may be modified in order to take account of these opinions, which are considered as favourable if they have not been given within a period of three months from receipt of the draft. If the plan is drawn up by the State under the conditions set out in article L. 541-15, the opinion of the Conseil Général and, in Ile de France, of the regional council, is also sought.
VIII. - The draft plan is then submitted for a public enquiry, then approved by deliberation of the Conseil Général or, for the Ile de France region, by deliberation of the regional council.
Article L541-15 (Act no. 2002-276 of 27 February 2002 Article 109 IV b Official Journal of 28 February 2002) (Act no. 2004-809 of 13 August 2004 Article 46 Official Journal of 17 August 2004, in force on 1st January 2005)
In the zones in which the plans described in Articles L. 541-11, L. 541-13 and L. 541-14 apply, the decisions made by the legal entities under public law and their concessionaries in the waste disposal sector and, in particular, the decisions made in application of Title I of this Book, must be compatible with these plans.
These plans are revised in accordance with a procedure that is identical to the one used when they are adopted. The methods and procedures for the drawing up, publication and revision of the plans are set by a Conseil d'Etat
decree. This decree sets, in particular, the terms of public consultation, the publicising measures to be taken when the plans are drawn up and after they are adopted, and the simplified procedure for revising the plans, applied when the projected modifications do not bring into question the general economy. This decree also sets the conditions under which the State representative may ask the President of the Conseil Général or the President of the regional council for a new deliberation on the draft plans described in articles L. 541-13 and L. 541-14 or the drawing-up or the revision of these plans, then draw up or revise them when the regional councils or the Conseils Généraux have not adopted them within eighteen months after it has been invited to do so.
NB: Law 2004-809 of 13 August 2004, article 48: transitory provisions concerning household waste disposal plans.
Subsection 2 Underground storage of waste Articles L541-16 to
L541-20
Article L541-16 Nuclear waste is excluded from the application of the provisions of the present sub-section.
Article L541-17 (Order no. 2005-1129 of 8 September 2005 Article 3 Official Journal of 9 September 2005)
I. - The works carried out to seek formations or geological cavities suitable for the underground storage of ultimate waste may only be undertaken:
1° Either by the owner of the land or with his or her consent, after a declaration to the Préfet; 2° Or, failing this consent, by authorisation of the administrative authority, after the owner has been invited to
present his or her observations, under the conditions set by a Conseil d'Etat decree. II. - This authorisation to search entitles its holder, within a perimeter set by the decision, to carry out the work to the
exclusion of any other person, including the owner of the land. III. - This authorisation is subject to prior consultation, allowing the population, councillors, and the environmental
protection associations concerned to present their observations. NB: Order 2005-1129 of 8 September 2005: the provisions of article 3 of Order 2005-1129 will apply to Mayotte as
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ENVIRONMENTAL CODE of 1st January 2006.
Article L541-18 In the case of the underground storage of waste, the owner of the underground cavity may only be the operator or
an entity under public law. However, when the storage is to be placed in a mineral deposit covered by a concession of unlimited duration, the
cavity remains the property of the concessionary. In this case, the holder of the mining concession and the holder of the authorisation to operate agree on the terms to make the cavity available.
The authorisation in application of Title I of this Book sets all prescriptions to ensure the safety and conservation of the subsoil.
It also sets the long-term supervision measures and the safety work imposed on the operator.
Article L541-19 In case of the concomitant operation of a mineral deposit and a waste storage facility, the holder of the authorisation
to operate and the holder of the mining concessions agree on the conditions of use of any shared parts. This agreement is subject to the control of the competent administrative authority.
Article L541-20 Articles 71 to 76 of the Code minier apply to the works described in Article L. 541-17 and to the operation of
underground facilities for the storage of ultimate waste.
Subsection 3 Collection of household and similar waste Article L541-21
Article L541-21 The provisions relating to the disposal of household and similar waste by the local authorities are listed in the Code
général des collectivités territoriales (second part, Book II, Title II, Chapter IV, Sections 1 and 3).
Subsección 4 Facilities for waste disposal Articles L541-22 to
L541-30-1
Article L541-22 For some of the categories of waste described in Article L. 541-7 and specified by decree, the administration sets,
on all or part of the national territory, the conditions for practising the activity of disposal as defined in Article L. 541-2. These same categories of waste can only be treated in the facilities for which the operator holds an approval
certificate from the administration. They may not be treated with a view to disposing of them in existing facilities for which this approval has not been granted at the date of entry into force set by the decree described in the previous paragraph.
Article L541-23 Any person who transmits or has transmitted waste belonging to the categories described in Article L. 541-22 to
anyone other than the operator of an approved disposal facility is jointly responsible with him or her for the damage caused by this waste.
Article L541-24 Special industrial waste, which appears on a list set by a Conseil d'Etat decree owing to its dangerous properties,
may not be deposited in storage facilities that receive other categories of waste. From 1st July 2002, the facilities for waste disposal by storage are only authorised to receive ultimate waste.
Article L541-25 Waste disposal facilities are subject, irrespective of the operator, to the provisions of Title I of this Book. The impact
study on a waste storage facility, carried out in application of Title I of this Book, indicates the conditions for rehabilitating the storage site and the envisaged techniques destined to enable the return of the waste in the event that no other technique can be used. This study is submitted for opinion, before the authorisation to operate is granted, to the interested local commission for information and surveillance when it exists, and to the municipal council of the commune where the facility is implanted.
Article L541-26 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002)
When it notes that the financial guarantees demanded in application of Article L. 516-1 are no longer supplied, the competent administrative authority issues a summons to the operator to restore them. Any failure to do so noted one month after the summons date may give rise to an administrative fine decided upon by the Minister for the environment. The amount of the fine is equal to three times the value of the difference between the amount of the guarantees demanded and that of the guarantees actually supplied, within the limit of 30 489 803 euros. The Minister may not issue a fine more than one year after the summons.
The recovery of the sums is allocated to the Public Treasury in the same way as that applied to debts not relating to taxes or real estate. The product of the fine is attributed to the Environment and Energy Management Agency for the improvement or supervision of centres for the storage of ultimate waste.
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ENVIRONMENTAL CODE A Conseil d'Etat decree specifies the guarantees of procedure aiming to ensure the right to defence when the fine is
issued. Existing facilities must have been brought into conformity with the provisions of this Article at 14 June 1999. The abovementioned decree sets the conditions under which a payment to the Environment and Energy
Management Agency may act, in full or in part, as a guarantee, in particular for facilities that no longer operate and those that will cease to operate within the time limit provided for in the previous paragraph.
Article L541-27 The application for an authorisation for a waste storage facility is presented by the owner of the land or with his or
her express agreement. This agreement must be produced in the application file and must relate to the elements of the impact study linked with the state of the ground surface and sub-surface. Both the owner and the applicant are recipients of the administrative decisions pertaining to the facility.
Article L541-28 In the event of conveyance for valuable consideration of a waste storage facility, the vendor or the assignor is
obliged to inform the Préfet and the Mayor. Failure to do so will result in the vendor or the assignor being considered the possessor of the waste stored there under Article L. 541-2 and possessor of the facility under Article L. 511-1.
Article L541-29 In order to prevent the risks and nuisances mentioned in the first paragraph of Article L. 541-2, the commune in
which the premises are located may exercise the right of pre-emption, under the conditions provided for in Chapters I and III of Title I of Book II of the Code de l'urbanisme, on the real-estate assets of storage facilities that have reached the end of their operation. The purchase price is set bearing in mind, where applicable, the cost of supervision and the works required to prevent the nuisances.
Any intentional conveyance of the real-estate assets of a waste storage facility at the end of operation is subject, on penalty of being declared void, to the prior declaration provided for in Article L. 213-2 of the Code de l'urbanisme.
Article L541-30 If a holder of waste does not succeed, on the national territory and owing to refusal from the operators of facilities
authorised for this purpose, in having this waste disposed of in an authorised facility, the Minister for the environment may oblige one or more operators of authorised facilities to dispose of this waste, subject to compliance with the prescribed conditions of operation. The decision mentions the nature and quantity of waste to be treated and the duration of the service provision. The cost of disposal, calculated on the bases normally applied to analogue operations, is to be borne by the holder.
Article L541-30-1 (Inserted by Law no. 2005-1319 of 26 October 2005 Article 5 Official Journal of 27 October 2005)
I. The operation of an inert waste storage facility is subject to the administrative authorisation issued under the conditions provided for by a Conseil d'Etat decree.
II. The present article does not apply to: 1 Inert waste storage facilities which already fall under an operation authorisation system; 2 Facilities where the inert waste is stored for a period shorter than three years with the aim of preparing its
transport with a view to reusing it in a different place, or stored for a period shorter than one year before its transport to a final storage place;
3 The use of inert waste for development, landfill or rehabilitation works or for construction purposes. NB: Law no. 2005-1319 of 26 October 2005, article 5 II: "Inert waste storage facilities in service on the date upon
which the present law comes into force are subject to the provisions of I under the conditions set by a Conseil d'Etat decree.
Subsection 5 Waste retrieval Articles L541-31 to
L541-39
Article L541-31 Decrees approved by the Conseil d'Etat can regulate the methods of use of certain materials, elements or energy
forms in order to facilitate their retrieval or that of the materials and elements combined with them in certain manufactures.
The regulation may cover, in particular, the prohibition of certain treatments, mixtures or combinations with other materials, or the obligation to comply with certain manufacturing methods.
Article L541-32 Subject to the international conventions and the provisions relating to the repression of fraud, the Government may,
in order to contribute to the safeguarding of the environment or to cope with a shortage, set the minimum proportion of retrieved materials or elements to be respected for the manufacture of a product or a category of products.
The producers and importers concerned may join together via an agreement with the purpose of ensuring global compliance with this proportion, calculated with regard to the total quantity of the said product or of the said category of products manufactured on the national territory or imported.
The use of a minimum proportion of retrieved materials or elements may be imposed by a Conseil d'Etat decree on
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ENVIRONMENTAL CODE the manufacturers and, where applicable, the importers of the products described who are not a party to this agreement.
Article L541-33 Regarding the categories of products specified by a Conseil d'Etat decree, any stipulation creating discrimination
owing to the presence of retrieved materials or elements in products that satisfy the regulations and standards in force, shall be deemed nonexistent.
Article L541-34 When the absence or low content of materials of this kind will not modify the substantial qualities of a product, any
advertising based on this characteristic is prohibited. This advertising is investigated and repressed under the conditions provided for in Articles L. 121-2 to L. 121-7 of the Code de la consommation.
Article L541-35 For the categories of materials set by a Conseil d'Etat decree, the administration sets the conditions for the activity
of retrieval, on all or part of the national territory. These same categories of materials can no longer be retrieved under conditions other than those provided for in the
previous paragraph one year after the publication of the decree for the application of the said paragraph.
Article L541-36 Plans authorised in a Conseil d'Etat decree after a public enquiry may define, within the territorial limits that they
specify, the conditions under which it is necessary to proceed to the retrieval of materials, elements and, where possible, reusable energy forms. In the zones where such a plan is applicable, the conditions described in Article L. 541-35 are set, taking account of the provisions of this plan, and in particular the objectives that it sets with a view to ensuring optimal output at the public and private retrieval facilities.
Article L541-37 Industrial establishments producing waste heat in the natural environment must, if an economic report shows it to
be useful, and in accordance with the methods set by a Conseil d'Etat decree, following a report by the Ministers concerned, allow the use of a fraction of their production of heat by third parties for collective domestic or industrial purposes with the aim of limiting the volume of the said waste.
Article L541-38 The only uses for mineral and synthetic oils which, after use, are no longer useable in their state for the purposes
for which they were destined as new oils, and the disposal of which into the natural environment is prohibited under the provisions of decree no. 77-254 of 8 March 1977, are, when the quality of these waste oils allow, regeneration and industrial use as a combustible. This latter use may only be authorised in approved establishments and when the needs of the regeneration industries have been preferentially satisfied.
A decree sets the conditions of application of this Article.
Article L541-39 (Act no. 2005-781 of 13 July 2005 Article 32 Official Journal of 14 July 2005)
The companies financing energy savings, described in Article 30 of Act no. 80-531 of 15 July 1980 relating to energy savings and the use of heat, are authorised to finance, by means of property-leasing or movable asset leasing or rental, the structures and facilities destined for the retrieval, transport, treatment, recycling and reuse of all types of waste and effluents, irrespective of the user of these facilities. The provisions of paragraph II of the same Article 30 do not apply to operations financed under the conditions provided for in this Article.
SECTION IV Specific provisions relating to the cross-border movement of waste Articles L541-40 to
L541-42
Article L541-40 To prevent the nuisances mentioned in the first paragraph of Article L. 541-2, the import, export and transit of
certain categories of waste may be prohibited, regulated or subject to prior agreement from the interested States. Prior to any operation to import, export or transit waste, the holder of the waste informs the competent authorities of
the interested States. The import, export and transit of waste are prohibited when the holder is unable to provide proof of an agreement
binding him or her to the recipient of the waste or when the recipient does not possess the capacity and competencies to dispose of this waste under conditions that do not present any risk either to human health or to the environment.
Article L541-41 When waste has been introduced onto the national territory in ignorance of the rules set out in Article L. 541-40, the
competent administrative authority may order its holder to return it to the country of origin; in case of failure to do so, the authority may take all necessary measures to have it returned; the corresponding expenses are to be borne by the persons who have contributed to introducing or depositing this waste, and are recovered under the conditions mentioned in the second paragraph of Article L. 541-3.
Article L541-42 When waste has been exported in ignorance of the rules set out in Article L. 541-40, the competent administrative
authority may order the producer or the persons who have contributed to the export to have the waste returned to the
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ENVIRONMENTAL CODE national territory. In case of failure to do so, the authority may take all necessary measures to have it returned. The corresponding expenses are to be borne by the producer or the persons who have contributed to the export of this waste, and are recovered under the condition mentioned in the second paragraph of Article L. 541-3.
SECTION V Financial provisions Article L541-43
Article L541-43 A public interest group may be set up under the conditions set out in Article 21 of Act no. 82-610 of 15 July 1982 for
orientation and programming for technological research and development in France, in order to facilitate the installation and operation of any new collective centre for the treatment of special industrial waste, or any new facility for the storage of ultimate waste.
The public interest group may, in this capacity, conduct actions of assistance including, among other things, landscape improvements, of information and of training of the public, and manage facilities in the general public interest for the benefit of inhabitants living locally to the facilities, the communes in which they are implanted, and neighbouring communes.
The set-up of a public interest group as defined in this Article is compulsory in the case of the underground storage of ultimate waste in deep geological strata.
As well as the State and the holder of the authorisation granted in accordance with the provisions of Title I of this Book, the region and the département in which the new collective centre is located, the communes in which the facilities are implanted and the neighbouring communes, as well as any inter-commune cooperation body whose objective is to encourage the economic development of the zone concerned, are entitled to join this group.
SECTION VI Criminal provision Articles L541-44 to
L541-48
Subsection 1 Investigation of offences Articles L541-44 to
L541-45
Article L541-44 I. -: In addition to the judicial police officers mentioned in Article 20 of the Code de procédure pénale, the following
are qualified to proceed to the detection and investigation of infringements of the provisions of this Chapter and of the regulations for its application:
1° The judicial police officers described in Article 21 of the Code de procédure pénale; 2° The officers of the national police force and the officers of the municipal police, within the limits of the provisions
relating to their jurisdiction; 3° The agents authorised for the repression of fraud; 4° The officers and agents of the road construction and maintenance department, the rural engineering department,
the water and forestry departments, the National Forestry Commission, the transport department and the external services of the merchant navy, sworn and commissioned for this purpose;
5° The officers of the health department specially commissioned under the conditions set in Article L. 1312-1 of the Code de la santé publique;
6° The inspectors of classified facilities; 7° The sworn researchers, engineers and technicians of the French institute of research for the exploitation of the
sea; 8° Customs officers. II. - The official reports drawn up in application of this Article have probative force unless proven otherwise.
Article L541-45 The officials who conduct investigations have free access to the disposal or retrieval facilities, to the places of
production, sale, dispatch or storage, to their annexe premises and to the depots of waste, materials or products of which they may take samples for identification purposes. This provision does not apply to dwellings.
The officials who conduct investigations also exercise their action in the transport of products, waste or materials. They may demand, for the fulfilment of their role, the opening of any packaging, or proceed to the inspection of any load, in the presence of the dispatcher, the consignee, the haulier or the carrier.
Subsection 2 Sanctions Articles L541-46 to
L541-48
Article L541-46 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Order no. 2004-691 of 12 July 2004 Article 3 IV Official Journal of 14 July 2004) (Order no. 2005-1129 of 8 September 2005 Article 2 IV Official Journal of 9 September 2005)
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ENVIRONMENTAL CODE (Act no. 2005-1319 of 26 October 2005 Article 5 I Official Journal of 27 October 2005)
I. - The following acts are punishable by two years' imprisonment and a fine of 75 000 euros: 1° Refusing to provide the administration with the information described in Article L. 541-9 or providing false
information; 2° Ignoring the stipulations of Article L. 541-10; 3° Refusing to provide the administration with the information described in Article L. 541-7 or providing false
information, or deliberately putting oneself in a position where it is materially impossible to provide this information; 4° Abandoning, depositing or having deposited, under conditions contrary to the provisions of this Chapter, waste
belonging to the categories described in Article L. 541-7 and listed in the enactment for its application; 5° Carrying out the transport of or brokerage or trading of waste belonging to the categories described in Article L.
541-7 without fulfilling the prescriptions for the application of Article L. 541-8 and its enactments; 6° Transmitting or having transmitted waste to anyone other than the operator of an approved facility, in ignorance
of Article L. 541-22; 7° Disposing of waste or materials without holding the approval provided for in Article L. 541-22; 8° Disposing of or retrieving waste or materials without fulfilling the prescriptions concerning the characteristics,
quantities, technical and financial conditions for handling the waste or materials, and the treatment processes used, set in application of Articles L. 541-11, L. 541-22, L. 541-24, L. 541-35 and L. 541-36;
9° Ignoring the prescriptions of Articles L. 541-30-1 and L. 541-31; 10° Obstructing the inspections or the exercise of the functions of the agents defined in Article L. 541-44; 11° Exporting or having exported, importing or having imported, and having transited the waste described in the first
paragraph of Article L. 541-40 without fulfilling the prescriptions for the application of this Article or its enactments; 12 Ignoring the obligations regarding information provided for in article L. 325-3 of the Code des Ports Maritimes. II. - In case of conviction for the offences described in 4°, 6° and 8° of I, the court may order the rehabilitation with a
periodic penalty payment of the places damaged by the waste which have not been treated under the conditions provided by the law.
III. - In case of conviction for the offences described in 7° and 8° of I, the court may also order the temporary or definitive closure of the facility and prohibit its operator from exercising the activity of disposer or retriever.
IV. - In case of conviction for the offences described in 6°, 7°, 8° and 11° of I and committed with the aid of a vehicle, the court may also order the suspension of the driving licence for a period not exceeding five years.
V. - The court may order the display or the full or partial circulation of the decision, under the conditions provided for in Article 131-35 of the Code pénal.
Article L541-47 I. - Legal entities can be declared criminally responsible under the conditions set out in Article 121-2 of the Code
pénal for the offences defined in Article L. 541-46. II. - The penalties incurred by legal entities are: 1° Fines, in accordance with the terms set out by Article 131-38 of the Code pénal; 2° The penalties mentioned in 2°, 3°, 4°, 5°, 6°, 8° and 9° of Article 131-39 of the same Code. III. - The prohibition mentioned in 2° of Article 131-39 of the Code pénal covers the activity during which or on the
occasion of which the office was committed.
Article L541-48 Article L. 541-46 is applicable to all those who, in any way responsible for the running, management or
administration of any company or establishment, have knowingly let any person under their authority or their control be ignorant of the provisions mentioned in the said Article.
SECTION VII Miscellaneous provisions Articles L541-49 to
L541-50
Article L541-49 Each year, the Government presents to Parliament a report on the application of this Chapter. The report covers, in particular, the administrative actions with regard to cross-border transfers of waste. It is made public.
Article L541-50 The conditions of application of this Chapter are set by a Conseil d'Etat decree.
CHAPTER II Specific provisions relating to radioactive waste Articles L542-1 to
L542-14
Article L542-1 High-activity radioactive waste with a long life must be managed in full respect of the protection of nature, the
environment and health, taking into consideration the rights of future generations.
Article L542-2 The storage in France of imported radioactive waste, even if it has been re-treated on the national territory, is
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ENVIRONMENTAL CODE prohibited once the technical time limits imposed by re-treatment have expired.
Article L542-3 I. - Each year, the Government sends Parliament a report on the progress in research on the management of
high-activity radioactive waste with a long life, and the works being conducted simultaneously for: 1° The search for solutions for the separation and transmutation of the radioactive elements with a long life present
in this waste; 2° The study of reversible and irreversible storage possibilities in deep geological formations, notably thanks to the
construction of underground laboratories; 3° The study of long-term packaging and warehousing surface processes for this waste. II. - This report also deals with the research and works achieved abroad. III. - Before 30 December 2006, the Government will send Parliament a global report evaluating this research,
accompanied by a draft law authorising, where applicable, the set-up of a centre for the storage of high-activity radioactive waste with a long life, and setting the system of easements and constraints relating to this centre.
IV. - Parliament refers these reports to the parliamentary office for the evaluation of scientific and technological choices.
V. - These reports are made public. VI. - They are written up by a national evaluation commission, made up of: 1° Six qualified persons, including at least two international experts appointed equally by the National Assembly and
by the Senate, on the proposal of the parliamentary office for the evaluation of scientific and technological choices; 2° Two qualified persons appointed by the Government on the proposal of the higher council for the security of
nuclear information; 3° Four scientific experts, appointed by the Government on the proposal of the Academy of sciences.
Article L542-4 The conditions for the set-up and operation of the underground laboratories destined to study the deep geological
formations in which high-activity radioactive waste with a long life are likely to be stored or held, are set by Articles L. 542-5 to L. 542-11.
Article L542-5 Any project for the installation of an underground laboratory gives rise, before any undertaking of preliminary
research work, to a consultation with the councillors and populations of the sites concerned, under the conditions set by decree.
Article L542-6 The research work prior to the installation of the laboratories is conducted under the conditions set out by the law of
29 December 1892 on the damage caused to private property by the execution of public works.
Article L542-7 Without prejudice to the application of the provisions of Title I of this Book, the installation and operation of an
underground laboratory are subject to an authorisation granted by decree authorised by the Conseil d'Etat, after an impact study, the opinion of the municipal councils, the Conseils Généraux and the regional councils concerned and after a public enquiry organised according to the terms provided for by Articles L. 123-1 to L. 123-16.
This authorisation is accompanied by specifications. The applicant for this authorisation must possess the technical and financial capacities required to bring such
operations to fruition.
Article L542-8 The authorisation gives its holder, within a perimeter defined by the constitutive decree, the exclusive right to
proceed to surface and sub-surface works and to dispose of the materials extracted during these works. The owners of land located inside this perimeter are indemnified, either by amicable agreement with the
authorisation holder or in the manner applied in matters of expropriation. There may be a procedure of expropriation for public utility of all or part of these lands, for the benefit of the
authorisation holder.
Article L542-9 The authorisation decree also establishes, outside the perimeter mentioned in the previous Article, a perimeter of
protection in which the administrative authority may prohibit or regulate the works or activities likely to compromise the installation or operation of the laboratory in technical terms.
Article L542-10 Radioactive sources may be temporarily used in these underground laboratories for the purposes of
experimentation. In these laboratories, the storage of radioactive waste is prohibited.
Article L542-11 A public interest group may be set up, under the conditions provided by Article 21 of Act no. 82-610 of 15 July 1982
for orientation and programming for technological research and development in France, with the aim of conducting assistance actions and managing facilities likely to favour and facilitate the installation and operation of each laboratory.
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ENVIRONMENTAL CODE Aside from the State and the holder of the authorisation described in Article L. 542-7, the region and the
département in which is located the principal access to the laboratory, the communes with part of their territory less than ten kilometres away from this access, and any inter-commune cooperation organisation whose objective is to encourage the economic development of the zone concerned, are entitled to join this group.
Article L542-12 The National radioactive waste management agency, a public industrial and commercial establishment, is
responsible for the long-term management of radioactive waste, and in particular: 1° In cooperation, notably, with the Atomic Energy Commission, for participating in the definition and contributing in
the research and development programmes relating to the long-term management of radioactive waste; 2° For managing the long-term storage centres, either directly or by means of third parties acting on its behalf; 3° For designing, installing and building new storage centres, bearing in mind the long-term prospects for the
production and management of waste, and for conducting any studies required for this purpose, in particular the installation and operation of underground laboratories for the study of deep geological formations;
4° For defining, in compliance with the safety rules, packaging and storage specifications for radio active waste; 5° For inventorying the state and location of all radioactive waste on the national territory.
Article L542-13 On the site of each underground laboratory, a local information and monitoring committee is set up. This committee includes State representatives, two members of parliament and two senators appointed by their
respective Assembly, councillors from the local authorities consulted on the occasion of the public enquiry, members of environmental protection associations and agricultural unions, and representatives of professional organisations and of personnel of the site, along with the authorisation holder.
At least half of this committee is made up of councillors from the local authorities consulted on the occasion of the public enquiry. The committee is chaired by the Préfet of the département in which the laboratory is located.
The committee meets at least twice a year. It is informed of the objectives of the programme, the nature of the works, and the results obtained. It may refer to the national evaluation commission described in Article L. 542-3.
The committee is consulted about all questions relating to the operation of the laboratory with an effect on the environment and the neighbourhood. It may proceed to hearings or second expert opinions by approved laboratories.
The cost of setting up and running the local information and monitoring committee is borne by the group described in Article L. 542-11.
Article L542-14 A Conseil d'Etat decree sets, where necessary, the terms of application of this Chapter.
TITLE V Specific provisions relating to certain structures or facilities Articles L551-1 to
L553-4
CHAPTER I Risk studies Articles L551-1 to
L551-2
Article L551-1 (Act no. 2004-811 of 13 August 2004 Article 102 II Official Journal of 17 August 2004)
The projects to create a facility or structure for which it is necessary to draw up a special contingency plan in application of Article 15 of Act no. 2004-811 of 13 August 2004 relating to the modernisation of civil security, and which require authorisation or approval, must include a risk study.
A Conseil d'Etat decree sets, where necessary, the terms of application of this Article.
Article L551-2 (Inserted by Act no. 2003-699 of 30 July 2003 Article 6 Official Journal of 31 July 2003)
When, owing to the parking, loading or unloading of transport vehicles or machinery containing hazardous substances, the operation of a road, rail, port or inland navigation infrastructure or a multimodal facility may present serious risks to the safety of populations and to public salubrity and health, either directly or by pollution of the environment, the developer provides the competent administrative authority with a risk study. This study is updated every five years at least by the operator. When the structure or facility is subject to a safety report or a diagnostic under Articles L. 118-1 and following of the Code de la voirie routière, 13-1 and 13-2 of Act no. 82-1153 of 30 December 1982 for the orientation of inland transport, 30 of the Code du domaine public fluvial et de la navigation intérieure or L. 155-1 of the Code des ports maritimes, this risk study is integrated into this report or this diagnostic.
For the structures and facilities in service on the date of publication of Act no. 2003-699 of 30 July 2003 relating to the prevention of technological and natural risks and the repair of damages, this study is provided within three years at the latest following the entry into force of the said law.
The terms of application of this Article, in particular the categories of structures concerned, are set, for each means of transport, by a Conseil d'Etat decree.
CHAPTER II Financial guarantees Article L552-1
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ENVIRONMENTAL CODE Article L552-1
For the structures or facilities presenting risks the possible financial consequences of which are clearly disproportionate to the value of the capital tied up, the authority responsible for granting the authorisation to operate may subject this granting to the provision of financial guarantees. Decrees approved by the Conseil d'Etat set the categories of structures concerned, the rules setting the amount of the guarantee - which must be adapted to the foreseeable consequences of the risk - and the methods for its implementation.
CHAPTER III Wind-driven generators Articles L553-1 to
L553-4
Article L553-1 (Act no. 2003-590 of 2 July 2003 Article 98 I Official Journal of 3 July 2003) (Repealed by Order no. 2005-1527 of 8 December 2005 Article 34 IV Official Journal of 9 December 2005, in force on 1st July 2007)
As specified in the first paragraph of Article L. 421-1-1 of the Code de l'Urbanisme reproduced hereafter: Article L. 421-1-1 (first paragraph): The installation of a facility producing electricity from the mechanical energy of
wind, of a height greater than 12 metres, is subject to the obtaining of a building permit.
Article L553-2 (Act no. 2003-590 of 2 July 2003 Article 98 I Official Journal of 3 July 2003) (Order no. 2004-489 of 3 June 2004 Article 1 III Official Journal of 5 June 2004) (Act no. 2005-781 of 13 July 2005 Article 37 IV Official Journal of 14 July 2005)
I. - The installation of one or more facilities producing electricity from the mechanical energy of wind, with a mast height greater than 50 metres, is subject to the prior conducting of:
a) The impact study defined in Section 1 of Chapter II of Title II of Book I of this Code; b) A public enquiry subjected to the stipulations of Chapter III of Title II of Book I of this Code. II. - The projects for installation which are not subject to a prior impact study must be subject to a notice of impact.
Article L553-3 (Act no. 2003-590 of 2 July 2003 Article 98 I Official Journal of 3 July 2003) (Act no. 2005-781 of 13 July 2005 Article 40 Official Journal of 14 July 2005)
The operator of a facility producing electricity from the mechanical energy of wind is responsible for its dismantling and the rehabilitation of the site at the end of the operation. In the course of the operation, the operator provides the necessary financial guarantees. For facilities located in the public maritime domain, these financial guarantees are constituted at the beginning of construction. A Conseil d'Etat decree sets the conditions of constitution of the financial guarantees.
Article L553-4 (Act no. 2003-590 of 2 July 2003 Article 98 I Official Journal of 3 July 2003) (Act no. 2005-781 of 13 July 2005 Article 43 Official Journal of 14 July 2005)
I. - In order to promote harmonious development of the wind-generated energy, the regions may set up a regional wind power scheme, after an opinion issued by the départements and the public establishments for inter-commune cooperation concerned. This scheme indicates the geographical areas that appear to be best suited to the installation of facilities producing electricity using the mechanical energy of wind. The scheme takes into account the evaluation, by geographical zone, of the wind-energy potential, drawn up in application of I of article 6 of Law no. 2000-108 of 10 February 2000 relating to the modernisation and development of the public electricity service.
II. - The State departments may assist in the drawing up of this scheme on the request of the Regional Council.
TITLE VI Prevention of natural risks Articles L561-1 to
L565-2
CHAPTER I Measures to safeguard the populations threatened by certain major natural risks Articles L561-1 to
L561-5
Article L561-1 (Act no. 2002-276 of 27 February 2002 Article 159 V Official Journal of 28 February 2002) (Act no. 2003-699 of 30 July 2003 Article 60 Official Journal of 31 July 2003)
Without prejudice to the provisions set out in 5° of Article L. 2212-2 and in Article L. 2212-4 of the Code général des collectivités territoriales, when a foreseeable risk of land movement or of land subsidence owing to an underground cavity or a marl pit, of avalanches or of torrential floods seriously threatens human life, the State may declare to be of public utility the appropriation by the State, the communes or their groups, of the properties exposed to this risk, under the conditions set out by the Code de l'expropriation pour cause d'utilité publique and providing that the means to safeguard and protect the populations are most costly than the compensation for expropriation.
These provisions do not apply to underground cavities of natural or human origin resulting from the past or current
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ENVIRONMENTAL CODE operation of a mine.
The procedure set out in Articles L. 15-6 to L. 15-8 of the Code de l'expropriation pour cause d'utilité publique is applicable when extreme urgency makes it necessary to implement the safeguarding measures immediately.
However, in the setting of the amount of the compensation to replace the expropriated properties, the existence of the risk is not taken into account. The compensation paid in application of the fourth paragraph of Article L. 125-2 of the Code des assurances is deducted from the compensation for expropriation, when the repair works relating to the disaster have not been carried out and the value of the property has been estimated without taking account of the damage suffered.
Article L561-2 Without prejudice to the provisions of Article L. 13-14 of the Code de l'expropriation pour cause d'utilité publique,
acquisitions of real-estate properties may give rise to no compensation or reduced compensation if, owing to the period in which they took place, it appears that they were made with the aim of obtaining compensation greater than the purchase price.
Unless proven otherwise, acquisitions are presumed to have been made with this aim when they are made after the opening of the public enquiry prior to the approval of a plan for the prevention of foreseeable natural disasters making the zone concerned unsuitable for building or, in en the absence of such a plan, after the opening of the public enquiry prior to expropriation.
Article L561-3 (Act no. 2002-276 of 27 February 2002 Article 159 VI Official Journal of 28 February 2002) (Act no. 2002-1576 of 30 December 2002 special amending act Article 75 I Official Journal of 31 December 2002) (Act no. 2003-699 of 30 July 2003 Article 61 Official Journal of 31 July 2003)
I. The major natural disaster prevention fund is responsible for financing, within the limit of its resources, the compensation allocated in accordance with the provisions of Article L. 561-1, as well as the expenditure relating to limitation of access and to the possible demolition of the exposed properties in order to prevent any future occupation. It also finances, within the same limits, the cost of prevention relating to temporary evacuations and re-housing of the people exposed.
It may also, on the prior decision of the State and in accordance with the terms and conditions set by a Conseil d'Etat decree, contribute to the financing of prevention measures relating to the properties covered by an insurance policy mentioned in the fist paragraph of Article L. 125-1 of the Code des assurances. The prevention measures likely to be subject to this financing are:
1° The amicable purchase by a commune, a group of communes or the State of a property exposed to a foreseeable risk of land movement or land subsidence owing to an underground cavity or a marl pit, avalanches, torrential or flash floods posing a serious threat to human life, as well as the measures required to limit access to these properties and to prevent any occupation, providing that the amicable purchase price is less costly than the means required to safeguard and protect the populations;
2° The amicable purchase by a commune, group of communes or the State of properties used for dwellings or properties used for professional purposes by persons or legal entities employing fewer than twenty employees, in particular individual, commercial, farming or artisanal enterprises and their taxable land, as well as the measures required to limit access and to prevent any occupation, providing that the land purchased is made unsuitable for building within three years, when these properties have been damaged to the extent of more than half their value and indemnified in application of Article L. 125-2 of the Code des assurances;
3° The operations of reconnaissance of underground cavities and marl pits with noted risks to constructions and human life, as well as the treatment or filling in of underground cavities and marl pits which cause risks of land collapse posing a serious threat to human life, as long as this treatment is less costly than the expropriation provided for in Article L. 561-1;
4° The prevention studies and works provided for and made compulsory by a plan for the prevention of foreseeable natural disasters approved in application of 4° of II of Article L. 562-1 on properties used as dwellings or properties used in the framework of professional activities by persons and legal entities employing fewer than twenty employees, in particular industrial, commercial, farming or artisanal enterprises;
5° Information campaigns, in particular those conducted in application of the second paragraph of Article L. 125-2 of this Code, covering the guarantees described in Article L. 125-1 of the Code des assurances.
Financing by this fund of the amicable purchases mentioned in 1° and 2° is subject to the condition that the price set for these purchases does not exceed the amount of the compensation calculated in accordance with the fourth paragraph of Article L. 561-1. When a public authority other than the State has benefited from financing in application of 2° and the land purchased has not been made unsuitable for building within three years, it is obliged to reimburse the fund.
Financing by this fund of the reconnaissance operations and studies and works mentioned in 3° and 4° is made with a deduction of the amount of the compensation paid, where applicable in application of Article L. 125-2 of the Code des assurances for carrying out repair work likely to contribute to these reconnaissance operations or these prevention studies and works.
II. This fund is financed by an amount taken from the product of premiums or additional subscriptions relating to the guarantee against natural disasters provided for in Article L. 125-2 of the Code des assurances. It is paid by insurance companies or their fiscal representative described in Article 1004 bis of the Code général des impôts.
The rate of this amount is set by the administrative authority within a limit of 4%. The amount is collected following
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ENVIRONMENTAL CODE the same rules, under the same guarantees and with the same sanctions as the tax on insurance agreements provided for in Articles 991 and following of the Code général des impôts.
In addition, the fund may receive advances from the State. The accounting and financial management of the fund is carried out by the central reinsurance fund in an account
distinct from those that retrace the other operations carried out by this establishment. The costs charged by the central reinsurance fund for this management are borne by the fund.
Article L561-4 From the publication of the ruling to open the public enquiry prior to the expropriation carried out application of
Article L. 561-1, no building permit and no administrative authorisation likely to increase the value of the properties to be expropriated may be granted until the conclusion expropriation procedure, within a maximum period of five years, if the opinion of the Conseil d'Etat has not been given within this period.
The legal entity under public law on whose behalf a building permit or an administrative authorisation has been granted in ignorance of the provisions of the first paragraph above, or in contradiction with the plan for the prevention of foreseeable natural disasters made opposable, is obliged to reimburse the fund mentioned Article L. 561-3 for the cost of the expropriation of the properties that were subject to this permission or this authorisation.
Article L561-5 In the annexe to the finance law of the year, the Government presents to Parliament a report on the management of
the major natural disaster prevention fund. A Conseil d'Etat decree sets the terms of application of this Chapter.
CHAPTER II Plans for the prevention of foreseeable natural disasters Articles L562-1 to
L562-9
Article L562-1 (Act no. 2003-699 of 30 July 2003 Article 66 Official Journal of 31 July 2003)
I. - The State draws up and enforces plans fro the prevention of foreseeable natural disasters such as floods, land movements, avalanches, forest fires, earthquakes, volcanic eruptions, storms or cyclones.
II. - The purpose of these plans, where necessary, is: 1° To delimit the zones exposed to the risks, known as "danger zones", taking into account the nature and intensity
of the risk, to prohibit in these zones all types of construction, structure, facility or farming, forestry, artisanal, commercial or industrial operation or, in the event that constructions, structures, facilities or farming, forestry, artisanal, commercial or industrial operations may be authorised there, to stipulate the conditions under which they may be built, used or operated;
2° To delimit the zones, known as "precaution zones", which are not directly exposed to the risks but where constructions, structures, facilities or farming, forestry, artisanal, commercial or industrial operations could aggravate the risks or cause new ones, and to provide measures of prohibition or stipulations such as those provided in 1°;
3° To define the measures of prevention, protection and safeguarding which must be taken in the zones mentioned in 1° and 2° by the public authorities in the framework of their competencies, as well as those that may be incumbent on individuals;
4° To define, in the zones mentioned in 1° and 2°, the measures relating to the improvement, use or operation of constructions, structures, planted zones existing on the date of approval of the plan, which must be taken by the owners, operators or users.
III. - The implementation of the measures provided for in 3° and 4° of II may be made compulsory depending on the nature and intensity of the risk within a period of five years, which may be shortened in case of emergency. If conformity is not achieved within the stipulated period the Préfet may, after a summons has had no effect, order the implementation of these measures at the expense of the owner, the operator or the user.
IV. - The prevention measures provided in 3° and 4° of II, concerning wooded land, when they impose forest management rules or the conducting of prevention works concerning wooded areas under the responsibility of the public or private owners and operators, are taken in accordance with the provisions of Title II of Book III and Book IV of the Code forestier.
V. - The prevention works carried out in application of 4° of II to properties built or improved in accordance with the provisions of the Code de l'urbanisme before the approval of the plan and placed under the responsibility of the owners, operators or users, may only cover limited facilities.
Article L562-2 When a draft plan for the prevention of foreseeable natural disasters contains some of the provisions mentioned in
1° and 2° of II of Article L. 562-1 and if urgency justifies it, the Préfet may, after consultation with the Mayors concerned, make them binding on any public or private person by a decision which is made public.
These provisions cease to be binding if they do not feature in the approved plan or if the plan is not approved within three years.
Article L562-3 (Act no. 2003-699 of 30 July 2003 Article 62, Article 38, Article 39 Official Journal of 31 July 2003)
The Préfet defines the methods of consultation relating to the drawing up of the draft plan for the prevention of
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ENVIRONMENTAL CODE foreseeable natural disasters.
The local authorities and the public establishments for inter-commune cooperation concerned are associated with the drawing up of this draft.
After a public enquiry conducted under the conditions set out in Articles L. 123-1 and following, and after the opinion of the municipal councils on the territory on which it is to apply, the plan for the prevention of foreseeable natural disasters is approved by a ruling of the Préfecture. In the course of this enquiry and after the opinion of their municipal council, the Mayors of the communes in which the plans are to apply are heard.
Article L562-4 The approved plan for the prevention of foreseeable natural disasters plan is considered as an easement of public
utility. It is included in the annexes of the land use plan, in accordance with Article L. 126-1 of the Code de l'urbanisme. The approved plan for the prevention of foreseeable natural disasters is displayed in Mairies and is publicised in the
local press in order to inform the populations concerned.
Article L562-5 (Act no. 2003-699 of 30 July 2003 Article 63 Official Journal of 31 July 2003) (Order no. 2005-1527 of 8 December 2005 Article 34 I Official Journal of 9 December 2005, in force on 1st July 2007)
I. - The act of building or improving land in a zone prohibited by an approved plan for the prevention of foreseeable natural disasters, or of not complying with the conditions of construction, use or operation stipulated by this plan, is punishable by the penalties set out in Article L. 480-4 of the Code de l'Urbanisme.
II. - The provisions of Articles L. 460-1, L. 480-1, L. 480-2, L. 480-3, L. 480-5 to L. 480-9, L. 480-12 and L. 480-14 of the Code de l'Urbanisme also apply to the offences described in I of this Article, subject only to the following conditions:
1° The offences are investigated by the sworn civil servants and officers commissioned for this purpose by the competent administrative authority;
2° For the application of Article L. 480-5 of the Code de l'Urbanisme, the court rules, in the light of written observations or after hearing the Mayor or competent civil servant, even in the absence of their opinions, either on the bringing of the places or structures into conformity with the provisions of the plan or on their restoration to their previous state;
3° The right of inspection provided in Article L. 461-1 of the Code de l'Urbanisme is given to the representatives of the competent administrative authority.
4° The Tribunal de grande instance may also be referred to, in application of Article L. 480-14 of the Code de l'Urbanisme, by the Préfet.
Article L562-6 The exposure plans of foreseeable natural disasters approved in application of I of Article 5 of Act no. 82-600 of 13
July 1982 relating to the compensation of victims of natural disasters are considered as plans for the prevention of foreseeable natural disasters. The same goes for plans of submersible surfaces drawn up in application of Articles 48 to 54 of the Code du domaine public fluvial et de la navigation intérieure, the risk perimeters established in application of Article R. 111-3 of the Code de l'urbanisme, and the forest fire-sensitive zones plans drawn up in application of Article 21 of Act no. 91-5 of 3 January 1991 modifying various provisions relating to agriculture and forestry. Their modification or revision is subject to the provisions of this Chapter.
The plans or perimeters described in the previous paragraph that were being drawn up at 2 February 1995 are considered as draft plans for the prevention of foreseeable natural disasters, without there being a need to proceed to the consultations or public enquiries already organised in application of the previous procedures specific to these documents.
Article L562-7 A Conseil d'Etat decree specifies the conditions of application of Articles L. 562-1 to L. 562-6. It defines, in
particular, the elements making up and the elaboration and revision procedure for the plans for the prevention of foreseeable natural disasters, as well as the conditions under which are taken the measures provided for in 3° and 4° of II of Article L. 562-1.
Article L562-8 In the submersible parts of valleys and in other flood zones, the plans for the prevention of foreseeable natural
disasters define, where necessary, the prohibitions and technical prescriptions to be respected in order to ensure the free drainage of the water and the conservation, restoration or extension of flood plains.
Article L562-9 In order to define the prevention measures to be implemented in forest fire-sensitive zones, the Préfet draws up, in
consultation with the interested Conseils Régionaux and Conseils Généraux, a plan for the prevention of foreseeable natural disasters.
CHAPTER III Other prevention measures Articles L563-1 to
L563-6
Article L563-1 (Act no. 2003-699 of 30 July 2003 Article 64 Official Journal of 31 July 2003)
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ENVIRONMENTAL CODE In zones that are particularly exposed to a seismic or cyclonic risk, specific rules covering paraseismic or
paracyclonic construction may be imposed on facilities, buildings and installations. If a plan for the prevention of foreseeable natural disasters is approved in one of the zones mentioned in the first
paragraph, it may set, in application of Article L. 562-1, more suitable rules. A Conseil d'Etat decree sets the terms of application of this Article.
Article L563-2 (Act no. 2005-157 of 23 February 2005 Article 190 V Official Journal of 24 February 2005) (Order no. 2005-1527 of 8 December 2005 Article 34 V Official Journal of 9 December 2005, in force on 1st July 2007)
In mountainous zones, in the absence of a plan for the prevention of foreseeable natural disasters, the town and country planning documents as well as the projects for works, constructions or installations subject to an application for authorisation or a consideration decisions must take account of the natural risks specific to these zones, whether they are known pre-existing risks or those which could result from envisaged modifications of the environment.
This consideration is assessed according to the information that the competent authority may have. Without prejudice to the provisions of the two paragraphs above, the State representatives described in Article L.
145-11 of the Code de l'Urbanisme for new tourism units, and in Articles L. 472-1 to L. 472-5 of the same Code for mechanical ski-lifts take account of natural risks when granting the corresponding authorisations.
Article L563-3 (Inserted by Act no. 2003-699 of 30 July 2003 Article 42 Official Journal of 31 July 2003)
I. - In zones exposed to risks of flooding, the Mayor, with the assistance of the competent State departments, draws up an inventory of the existing flood marks on the territory of the commune and establishes the marks corresponding to historic floods, new exceptional floods or submersion by the sea. The commune or the competent group of local authorities marks out, maintains and protects these marks.
II. - The provisions of Act no. 43-374 of 6 July 1943 relating to the performance of geodetic and cadastral work and the conservation of signs, boundary marks and markings are applicable.
III. - A Conseil d'Etat decree sets the terms of application of the present Article (see NB). NB: Decree no. 2005-233 of 14 March 2005, published in the JORF of 16 March 2005.
Article L563-4 (Inserted by Act no. 2003-699 of 30 July 2003 Article 47 Official Journal of 31 July 2003)
The provisions of Articles L. 54 to L. 56-1 of the Code des postes et télécommunications also apply to the hydrometeorological radar the list of which is set by a joint ruling of the minister responsible for transport and the minister responsible for the environment.
Article L563-5 (Inserted by Act no. 2003-699 of 30 July 2003 Article 78 Official Journal of 31 July 2003)
I. - At the request of the local authorities or groups of local authorities on the grounds of the safety of the people and property on the territory for which they are responsible, the State and its public bodies communicate, solely for this purpose and free of charge, the information at their disposal to the said local authorities or groups of local authorities. However, they may charge the costs of reproduction and transmission of the said data to those requesting it.
II. - A Conseil d'Etat decree sets the terms by which the present Article is implemented. This decree specifies notably the information produced by the State or by its public bodies which can be accessible free of charge to the local authorities.
Article L563-6 (Inserted by Act no. 2003-699 of 30 July 2003 Article 43 Official Journal of 31 July 2003)
I. - The communes or groups of communes competent in matters relating to town planning documents, draw up, as necessary, maps marking out the sites in which underground cavities or marl pits are located, which are liable to cause the ground to subside.
II. - Any person aware of the existence of an underground cavity or a marl pit of which the subsidence is liable to cause damage to people or property, or aware of evidence likely to reveal the existence of such, informs the Mayor who immediately informs the representative of the State in the département and the President of the Conseil Général of the information available on the said subject.
The diffusion of manifestly incorrect or dishonest information or of information resulting from an intentionally wrongful intent relating to the existence of an underground cavity or a marl pit is punishable by a fine of 30,000 euros.
III. - The representative of the State in the département publishes and updates, according to the terms set by a Conseil d'Etat decree, the list of communes for which he or she has been informed by the Mayor of the existence of an underground cavity or a marl pit and of those for which there is a real and serious presumption of the existence of such a cavity.
CHAPTER IV Forecasting of floods Articles L564-1 to
L564-3
Article L564-1 (Inserted by Act no. 2003-699 of 30 July 2003 Article 41 Official Journal of 31 July 2003)
The organisation and surveillance of forecasting and information transmission relating to floods is ensured by the
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ENVIRONMENTAL CODE State.
Article L564-2 (Inserted by Act no. 2003-699 of 30 July 2003 Article 41 Official Journal of 31 July 2003)
I. - A master plan for the forecasting of floods is established for each river basin by the basin coordination Préfet, in order to ensure the coherence of the systems that can be implemented, under their own responsibility and for the own needs, by the local authorities or groups of local authorities in order to monitor flooding of certain waterways or estuary zones, with the systems of the State and its public bodies.
II. - The local authorities or groups of local authorities may have free access, for the purposes of the operation of their surveillance systems, to the data collected and the forecasts prepared thanks to the surveillance systems set up by the State, its public bodies and the operators of hydraulic structures.
III. - The information collected and forecasts prepared thanks to the surveillance systems set up by the local authorities or groups of local authorities are transmitted to the authorities endowed with police powers. Those responsible for facilities or operations liable to be concerned by this information may have free access to it.
Article L564-3 (Inserted by Act no. 2003-699 of 30 July 2003 Article 41 Official Journal of 31 July 2003)
I. - The organisation of the surveillance, forecasting and transmission of information relating to flooding, by the State, its public bodies and, if applicable, local authorities or groups of local authorities, is subject to regulations established by the Préfet.
II. - A Conseil d'Etat decree sets the terms by which the present Chapter is implemented.
CHAPTER V Département commissions and major natural disaster prevention plans Article L565-2
Article L565-2 (Inserted by Act no. 2003-699 of 30 July 2003 Article 45 Official Journal of 31 July 2003)
I. - The Préfet may draw up natural risk prevention plans, taking into account the inter-département documents covering the existing risks. These plans specify the measures to be taken in the département in matters relating to:
- knowledge of the risk; - surveillance and forecasting of phenomena; - information and education about risks; - taking the risks into account in land improvement; - work enabling a reduction in the risks; - feedback on experience. The département commission on major natural risks gives its opinion on these plans. II. - A Conseil d'Etat decree sets the terms by which the present Article is implemented.
TITLE VII Prevention of acoustic and visual nuisances Articles L571-2 to
L572-11
CHAPTER I Noise abatement Articles L571-2 to
L571-1
Article L571-1 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
The purpose of the provisions of the present Chapter is, in fields where such is not provided for, to prevent, suppress or limit the emission or propagation, be it needless or for lack of precaution, of noises or vibrations of such a nature that they present a hazard, cause excessive disturbance to people, are harmful to their health or harm the environment.
SECTION I Noise emissions of objects Articles L571-2 to
L571-5
Article L571-2 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
Without prejudice to the other applicable legislative or regulatory provisions, decrees approved by the Conseil d'Etat, issued after an opinion has been given by the National Council for Noise, define, for objects liable to cause great noise disturbance and for all systems intended to reduce noise emissions:
1° The stipulations relating to acceptable noise levels, conditions of use, methods of noise measurement, marking of objects and systems and the terms by which the public is informed;
2° The rules applicable to manufacture, importation and placing on the market; 3° The procedures for approval and certification evidencing their compliance with the stipulations relating to
acceptable noise levels; 4° The conditions of issue and withdrawal by the administrative authority of the approval of the organisations
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ENVIRONMENTAL CODE charged with issuing approvals and certifications;
5° The conditions in which the administrative authority may check or have checked by organisations, at the expense of the holder, the compliance of the objects and systems with the stipulations mentioned in 1° of the present Article.
Article L571-3 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
Any professional in the sale and rental of noise protection objects and systems regulated for the application of Article L. 571-2 is required to inform the purchaser or lessee of the acoustic properties of the said objects or systems.
Article L571-4 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
Any contract intended to transfer the ownership or enjoyment of an object or system which does not benefit from the approval certification provided for in Article L. 571-2 or does not meet the stipulations established for the application of the said Article is automatically null and void.
Article L571-5 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
The provisions of the present section are not applicable to objects and systems designed for the accomplishment of missions of national defence.
They may not be substituted for the more protective provisions contained in the Code de l'aviation civile, the Code de la route or the Code du travail.
SECTION II Noisy activities Articles L571-6 to
L571-8
Article L571-6 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
Without prejudice to the other applicable legislative or regulatory provisions, noisy activities exercised by public or private companies, establishments, centres of activity or facilities, be they temporary or permanent, which do not feature in the nomenclature of classified facilities for the protection of the environment, may be subject to general stipulations or, when they are liable, by the noise they cause, to present hazards or cause the disturbance mentioned in Article L. 571-1, to authorisation.
Noisy sports or open-air activities liable to cause noise nuisance are also subject to the same provisions. The list of the activities subject to authorisation is defined in a nomenclature of noisy activities established by a
Conseil d'Etat decree issued after hearing the opinion of the National Council for Noise. The general stipulations referred to in the first paragraph and the stipulations imposed on activities subject to
authorisation specify the prevention, development or sound insulation measures applicable to the said activities, the conditions governing their distance from dwellings and the conditions in which technical inspections are conducted.
A Conseil d'Etat decree specifies the terms of application of the present Article, notably the procedure for issuing authorisations, the documents to be supplied to support the application and the conditions in which the public is informed and consulted.
The issuing of the authorisation provided for in the first paragraph is subject to an impact study being conducted in the conditions set out Articles L. 122-1 to L. 122-3 and is subject to a consultation of the public in the conditions set by decree.
The time limits and conditions in which existing activities must be rendered compliant to the stipulations established for the application of the present Article are set by a Conseil d'Etat decree.
Article L571-7 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
In order to limit the nuisances resulting from helicopter traffic in densely populated zones, it is prohibited to conduct training flights from or to airfields located in such zones, or to make round trips for tourism purposes above these same zones without a stopover of with a stopover of less than one hour. A Conseil d'Etat decree determines the restrictions the minister responsible for civil aviation can place on helicopter traffic from or to airfields located in these zones or above the said zones, in terms, notably, of the number of aircraft movements, times of day, distribution of flights over time, sound levels, types of aircraft or take-off and landing procedures.
When flying over built-up areas which are not located in densely populated zones, helicopters must comply with a minimum height above ground level.
These provisions are not applicable to transport for health-related purposes and to urgent civil protection missions. A Conseil d'Etat decree sets the terms of application of this Article.
Article L571-8 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
The provisions of Article L. 571-6 are not applicable to activities and facilities relating to national defence, public civil protection services and fire fighting, or to land-transport facilities or infrastructures subject to the provisions of Articles L. 571-9 and L. 571-10 of the present Code and L. 111-11, L. 111-11-1 and L. 111-11-2 of the Code de la Construction et de l'Habitation or to airfields created subject to a ministerial ruling.
However, the public is informed of the stipulations intended to limit noise nuisance imposed on these activities and
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ENVIRONMENTAL CODE facilities by the administrative authority to which they answer.
SECTION III Land transport facilities and infrastructures Articles L571-9 to
L571-10
Article L571-9 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
I. - The design, study and construction of land transport facilities and infrastructures take into account the noise nuisance that the creation and use of these facilities and infrastructures cause in the areas around them.
II. - Decrees approved by the Conseil d'Etat specify the stipulations applicable: 1° To new infrastructures; 2° To modifications and significant transformations of existing infrastructures; 3° To guided transport and, in particular, to infrastructures intended to carry high-speed trains; 4° To worksites. III. - The work authorisation application file relating to these facilities and infrastructures, subject to a public enquiry,
includes the measures envisaged to suppress or reduce the harmful consequences of noise nuisance.
Article L571-10 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
In each département, the Préfet lists and classifies the land transport infrastructures according to the noise characteristics of the traffic. On the basis of this classification, the Préfet determines, after consulting with the communes, the sectors located in the vicinity of these infrastructures which are affected by the noise, the noise levels to be taken into account for the construction of buildings there and the technical measures liable to reduce them.
The sectors determined in this way and the stipulations relating to the acoustic characteristics that apply in them are included in the land use plans of the communes in question.
A Conseil d'Etat decree specifies the terms of application of the present Article and, notably, the conditions in which builders are informed and the classification of the infrastructures according to the noise.
SECTION IV Noise of air transport Articles L571-11 to
L571-16
Subsection 1 Noise exposure plan Article L571-11
Article L571-11 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
The provisions relating to the use of land exposed to nuisances caused by aircraft noise are listed in the Code de l'Urbanisme (Book I, Title IV, Chapter VII).
Subsection 2 Environment of airports Article L571-12
Article L571-12 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
The provisions relating to the Airport Nuisance Control Authority are listed in the Code de l'aviation civile (Book II, Title II, Chapter VII).
Subsection 3 Environmental consultative commission Article L571-13
Article L571-13 (Act no. 2003-1312 of 30 December 2003 Article 19 III 2 a finance acts rectification for 2003 Official Journal of 31 December 2003) (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004) (Order no. 2004-637 of 1 July 2004 Article 31 I, II Official Journal of 2 July 2004, in force on 1st July 2005) (Order no. 2004-637 of 1 July 2004 Article 31 I, II Official Journal of 2 July 2004, in force on 1st July 2005) (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004) (Act no. 2004-1343 of 9 December 2004 Article 78 XXXII 3 Official Journal of 10 December 2004, in force on 1st July 2005)
I. - The administrative authority may create, for all airports referred to in Article L. 147-2 of the Code de l'Urbanisme, an environmental consultative commission. This commission is created automatically when the request is made by a commune of which part of the territory is covered by the noise exposure plan of the airport. This creation is also automatic for the airports described in article 1609 quatervicies A of the Code Général des Impôts.
II. - The commission is consulted for all questions of importance relating to the development or operation of the airport which could have an incidence on the environment. It may also, at its own initiative, issue recommendations on these questions. When one of the airports referred to in 1 of Article 1609 quatervicies A of the Code Général des Impôts
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ENVIRONMENTAL CODE is concerned, the recommendations relating to noise are transmitted to the Airport Noise Nuisance Control Authority. The environmental consultative commission coordinates, when applicable, the preparation of written documents formalising the undertakings of the various parties concerned by the operation of the airport in order to ensure control over the nuisances linked with those operations.
III. - For environmental quality charters, notably, it handles monitoring and implementation. In matters of noise due to air transport, it may refer to the Airport Noise Nuisance Control Authority any question relating to compliance with these charters and any requests for studies or expert appraisement.
IV., V. - Paragraphs repealed. VI. - The operating means of the commission are placed at its disposal by the airport operator. VII., VIII., IX., X. - Paragraphs repealed XI. - This commission comprises: 1° For one third of its members, representatives of the aeronautics professions; 2° For one third, representatives of the local authorities concerned; 3° For one third, representatives of the associations of local inhabitants and of the associations for the protection of
the environment and the living environment concerned by the airport environment. XII. - It is presided over by the representative of the State. XIII. - A Conseil d'Etat decree determines the terms of application of the present Article. NB: Article 31 of Order no. 2004-637 of 1st July 2004 has been modified by article 78 XXXII 3 of Law no. 2004-1343
of 9 December 2004. Entry into force on 1st July 2005 is enacted by article 34-7 of the same Order, inserted by article 78 XXXII 4 of Law
no. 2004-1343.
Subsection 4 Aid to local inhabitants Articles L571-14 to
L571-16
Article L571-14 (Act no. 2003-1312 of 30 December 2003 Article 19 III 2 b finance acts rectification for 2003 Official Journal of 31 December 2003) (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
The operators of the airports mentioned in I of Article 1609 quatervicies A of the Code Général des Impôts contribute towards the expenses incurred by local inhabitants living around these airports to install the necessary systems to reduce noise nuisance, under the conditions set by a Conseil d'Etat decree. For the airports mentioned in IV of Article 1609 quatervicies A of the same Code, this contribution is financed by the resources derived by each airport from the tax laid down by this same article.
Article L571-15 (Act no. 2003-1312 of 30 December 2003 Article 19 III 2 c finance acts rectification for 2003 Official Journal of 31 December 2003) (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
To define which inhabitants are entitled to claim this aid, for each airport mentioned in 1 of Article Article 1609 quatervicies A of the Code Général des Impôts, a noise annoyance plan is drawn up, noting the actual annoyance suffered around the said airports. The terms by which this plan is drawn up and reviewed are defined by decree.
Article L571-16 (Act no. 2003-1312 of 30 December 2003 Article 19 III 2 d finance acts rectification for 2003 Official Journal of 31 December 2003) (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
For each airport concerned, a commission is set up and is consulted on the content of the noise annoyance plan and on the use of the aid allocated to attenuate the nuisances suffered by local inhabitants.
It is composed of the representatives of the State, of the local authorities concerned, of the operators of aircraft, of local inhabitants' associations and of the management of the airport.
The composition and the rules of procedure of this commission are defined by a Conseil d'Etat decree.
SECTION V Administrative inspections and sanctions Article L571-17
Article L571-17 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
I. - Independently of any criminal proceedings, the competent administrative authority may, after a summons and full argument, take all or any measures destined to stop any disturbances resulting from the emission or propagation of noise originating from any object or system which has not been approved or certified as provided for by Article L. 571-2, or which does not comply with the stipulations established for the application of this Article, and may decide, provisionally, to stop its operation, impound it, prohibit placing it on the market, seize it wherever it might be or apply to the judge to have the object or system rendered unusable or destroyed.
II. - Independently of the criminal proceedings, when the administrative authority has ascertained the failure to comply with the provisions set out in Article L. 571-6 or the individual regulations and decisions issued for its application,
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ENVIRONMENTAL CODE it issues a summons to the operator or the person responsible for the activity to comply with the above within a set period of time. If, on expiry of the period of time set for performance, this order has not been complied with, the competent administrative authority may, after giving the party concerned the opportunity to present its defence:
1° Oblige the operator or the person responsible for the activity to deposit with the Treasury a sum corresponding to the amount of the work to be carried out, which will be refunded gradually as the required measures are performed; the said sum is collected in the same way as that applied in matters of debts not relating to tax or to real estate;
2° Have the required measures enforced ex officio and at the expense of the operator or the person responsible for the activity;
3° Suspend the activity until the required measures have been performed. III. - The sums deposited in application of 1° of II may be used to settle any expenses caused by the implementation
ex officio of the measures provided for in 2° of II.
SECTION VI Criminal provisions Articles L571-18 to
L571-26
Subsection 1 Investigation of offences Articles L571-18 to
L571-21
Article L571-18 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
I. - As well as the officers and agents of the judiciary police acting within the framework of the provisions of the Code de procédure pénale, the following are responsible for identifying and investigating infringements of the provisions of the present Chapter, as well as of the enactments or decisions for their application:
1° Officials commissioned for that purpose and sworn under the conditions determined by a Conseil d'Etat decree, belonging to the services of the State in charge of the environment, agriculture, industry, infrastructure, transport, the sea, health, youth and sports;
2° Those persons in charge of inspecting classified facilities or conducting expert appraisements, mentioned in Article L. 514-5;
3° Customs officials; 4° Officials accredited in matters relating to the repression of fraud. II. - As well as the above, the civil servants and officials of the local authorities mentioned in Article L. 1312-1 of the
Code de la santé publique and sworn for that purpose under the conditions defined by a Conseil d'Etat decree are responsible for identifying and investigating infringements of the rules relating to neighbourhood noise as defined by a Conseil d'Etat decree.
Article L571-19 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
In order to identify and investigate infringements, the officials mentioned in Article L. 571-18 have access to the premises, facilities and places where the operations at the origin of the infringements are conducted, except for homes or parts of premises serving as a home; they may request the communication of any professional document and take a copy of it, and may collect, either on site or by summons for an interview, the information and evidence specific to the accomplishment of their mission. Owners and operators are required to allow them access.
They may enter premises only between 8 am and 8 pm or outside these times if the establishment is open to the public or if an activity is underway.
The Procureur de la République is informed in advance of operations being envisaged in order to identify infringements and may object to the said operations.
Article L571-20 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
Infringements of the provisions of the present Chapter and their enactments are ascertained in reports which have probative force unless proven otherwise.
The reports must be sent to the Procureur de la République within five days of their closure, under penalty of being declared void.
A copy of the report is also sent to the party concerned within the same period of time.
Article L571-21 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
I. - Within the framework of the operations provided for in Article L. 571-18, the officials mentioned in the said Article, except for the civil servants and officials of the local authorities, may:
1° Take samples with a view to carrying out analyses or tests; the terms of application of the present paragraph are provided for by a Conseil d'Etat decree;
2° Impound, pending the necessary controls, the objects or systems suspected of being non-compliant with the provisions of the present Chapter and its enactments.
II. - This impounding may only be conducted with the authorisation of the President of the Tribunal de grande instance within the jurisdiction of which is located the place where the objects or systems subject to dispute are held, or
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ENVIRONMENTAL CODE of the magistrate delegated for that purpose.
III. - The case is referred to the said magistrate on the application of the officials mentioned in the present Article. The magistrate must issue a ruling within twenty-four hours.
IV. - The President of the Tribunal de grande instance checks that the application made to impound the object or system is justified. This application includes all the information liable to justify this measure.
V. - The impounding measure may not exceed fifteen days. In case of particular difficulties linked to the examination of the objects in question, the President of the Tribunal de grande instance may renew the measure for the same duration by an order stipulating the grounds for the decision.
VI. - The impounded objects are left under the care of their holder. VII. - The President of the Tribunal de grande instance may order the lifting of the impounding measure at any time.
The measure is lifted automatically in all cases in which the accredited officials have ascertained the compliance of the impounded objects or the fact that they have been rendered compliant.
VIII. - In case of non-compliance, any costs are at the expense of the offender under the conditions set by a Conseil d'Etat decree.
Subsection 2 Sanctions Articles L571-22 to
L571-26
Article L571-22 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
Obstructing the accomplishment of the inspections by the officials mentioned in Article L. 571-18 is punishable by six months' imprisonment and a fine of 7,500 euros.
Article L571-23 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
The following are punishable by two years' imprisonment and a fine of 30,000 euros: 1° Manufacturing, importing or placing on the market objects or systems without the accreditation of certification
demanded by the terms of Article L. 571-2; 2° Exercising an activity without the authorisation provided for in Article L. 571-6, or continuing to exercise an
activity without complying with the summons provided for in II of Article L. 571-17.
Article L571-24 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
In case of conviction, the court may order the removal, the seizure or the destruction of the objects or systems concerned by the infringement at the expense of the guilty party.
Likewise, in case of conviction for failure to comply with the provisions of Article L. 571-6, the court may pronounce a temporary prohibition of the activity in question until the provisions concerned by the infringement have been complied with.
Article L571-25 (Act no. 2004-204 of 9 March 2004 Article 198 Official Journal of 10 March 2004, in force on 1st January 2005) (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
In case of prosecution for infringement of the provisions of the present Chapter, or of the individual regulations or decisions made for its application, the court may, after declaring the accused guilty, decide to adjourn the pronouncement of the verdict and order the guilty party to comply, within a set period of time, with the stipulations it shall determine and the purpose of which is to put an end to the illegal acts and repair their consequences.
The court may make the injunction subject to the payment, in case of delay in performance, of penalties of which it sets the rate and the date from which they will commence.
There may only be one such adjournment; it may be ordered even if the accused does not appear in person. In all cases, the provisional execution of the decision may be ordered.
At the hearing to which the case is adjourned, which must take place within a period of one year as of the adjournment decision, the court pronounces the sentence and calculates the late performance penalty due, if applicable. It may, if it should so choose, suppress the late performance penalty or reduce its amount. The penalty is collected by the Treasury like a fine in criminal proceedings and does not give rise to legal restraint.
Article L571-26 (Order no. 2004-1199 of 12 November 2004 Article 1 Official Journal of 14 November 2004)
In case of conviction for infringement of the provisions of the present Chapter, the court may order, at the expense of the guilty party, that all or extracts of its decision be published and, should it so decide, that a message be diffused, the explicit terms of which it sets, informing the public of the grounds and content of its decision, in one or several newspapers designated by the court, and that it be posted under the conditions and subject to the penalties provided for, depending on the case, in Articles 131-35 and 434-39 of the Code pénal, without, however, the cost of that publicity
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ENVIRONMENTAL CODE exceeding the amount of the fine incurred.
CHAPTER II Evaluation, prevention and reduction of noise in the environment Articles L572-1 to
L572-11
Article L572-1 (Order no. 2004-1199 of 12 November 2004 Article 1 2 Official Journal of 14 November 2004) (Order no. 2004-1199 of 12 November 2004 Article 1 3, 4 Official Journal of 14 November 2004) (Act no. 2005-1319 of 26 October 2005 Article 4 II Official Journal of 27 October 2005)
The noise emitted into the environment in the areas surrounding the main transport infrastructures and the large conurbations is evaluated and is subject to actions aiming to prevent or reduce it, under the conditions provided for by the present chapter.
Article L572-2 (Order no. 2004-1199 of 12 November 2004 Article 1 3, 4 Official Journal of 14 November 2004) (Act no. 2005-1319 of 26 October 2005 Article 4 II Official Journal of 27 October 2005)
A noise map and an environmental noise prevention plan are drawn up: 1 For each of the road, airport and rail infrastructures the characteristics of which are set by a Conseil d'Etat decree; 2 For conurbations of more than 100,000 inhabitants, the list of which is set by a Conseil d'Etat decree.
Article L572-3 (Order no. 2004-1199 of 12 November 2004 Article 1 3, 4 Official Journal of 14 November 2004) (Act no. 2005-1319 of 26 October 2005 Article 4 II Official Journal of 27 October 2005)
The purpose of noise maps is to enable a global evaluation of exposure to noise in the environment and to draw up general forecasts of its evolution.
They comprise a set of graphic representations and numerical data. They are drawn up according to indicators evaluating the sound level. These indicators are fixed under the conditions defined by a Conseil d'Etat decree.
Maps relating to conurbations take into account the noise emitted by road, rail and air traffic and by industrial activity and, where applicable, other sources of noise.
Article L572-4 (Order no. 2004-1199 of 12 November 2004 Article 1 3, 4 Official Journal of 14 November 2004) (Act no. 2005-1319 of 26 October 2005 Article 4 II Official Journal of 27 October 2005)
I. - Noise maps are drawn up: 1 By the State representative when they relate to the transport infrastructures described in 1 of article L. 572-2; 2 By the communes located within the perimeter of conurbations of more than 100,000 inhabitants or, if they exist,
by the public inter-commune cooperation establishments competent in matters of sound nuisance control. II. - Where applicable, the authorities or bodies managing the infrastructures mentioned in 1 of article L. 572-2 send
to the authorities mentioned in I of the present article the elements required for the drawing-up of noise maps, within a period compatible with the deadlines set by articles L. 572-5 and L. 572-9.
Article L572-5 (Inserted by Order no. 2004-1199 of 12 November 2004 Article 1 3, 4 Official Journal of 14 November 2004)
Noise maps are re-examined and, where applicable, revised, every five years at least. The maps are made public, where applicable by electronic means.
Article L572-6 (Inserted by Order no. 2004-1199 of 12 November 2004 Article 1 3, 4 Official Journal of 14 November 2004)
The aim of the environmental noise prevention plans is to prevent the effects of noise, to reduce, where necessary, noise levels, and to protect quiet areas. Quiet areas are exterior zones which are remarkable for their low exposure to noise, in which the authority which draws up the plan wishes to control the evolution of this exposure, bearing in mind the human activities carried out or planned.
They comprise an evaluation of the number of people exposed to an excessive noise level and identify the sources of noise the level of which should be reduced.
They list the measures provided for by the competent authorities to deal with the situations identified by the noise maps, notably when the limit values set under the conditions defined by a Conseil d'Etat decree are exceeded or could be exceeded.
Article L572-7 (Order no. 2004-1199 of 12 November 2004 Article 1 3, 4 Official Journal of 14 November 2004) (Act no. 2005-1319 of 26 October 2005 Article 4 II Official Journal of 27 October 2005)
I. - The environmental noise prevention plans relating to the motorways and roads of national or European interest which are part of the public national highway domain, and relating to rail infrastructures, are drawn up by the State representative.
II. - The environmental noise prevention plans relating to road infrastructures other than those mentioned in I above are drawn up by the local authorities to which these infrastructures pertain.
III. - The environmental noise prevention plans relating to conurbations of more than 100,000 inhabitants are drawn
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ENVIRONMENTAL CODE up by the communes located within the perimeter of these conurbations or, if they exist, by the public inter-commune cooperation establishments competent in matters of sound nuisance control.
IV. - The authority which draws up the plan first obtains the agreement of the competent authorities or bodies to decide upon and implement the measures that it has listed.
Article L572-8 (Inserted by Order no. 2004-1199 of 12 November 2004 Article 1 3, 4 Official Journal of 14 November 2004)
Draft environmental noise prevention plans are subject to public consultation, under the conditions set by a Conseil d'Etat decree.
The environmental noise prevention plans are published. They are re-examined and, where applicable, revised in the event of a significant evolution in the noise levels
identified, and, at all events, every five years.
Article L572-9 (Order no. 2004-1199 of 12 November 2004 Article 1 3, 4 Official Journal of 14 November 2004) (Act no. 2005-1319 of 26 October 2005 Article 4 II Official Journal of 27 October 2005)
I. - The noise maps relating to conurbations of more than 250,000 inhabitants, to road infrastructures with annual traffic of more than 6 million vehicles, and to rail infrastructures with annual traffic of more than 60,000 passages of trains are published on 30 June 2007 at the latest. The corresponding environmental noise prevention plans are published on 18 July 2008 at the latest.
II. - The other noise maps are published on 30 June 2012 at the latest, and the corresponding plans on 18 July 2013 at the latest.
Article L572-10 (Inserted by Order no. 2004-1199 of 12 November 2004 Article 1 3, 4 Official Journal of 14 November 2004)
The noise maps and environmental noise prevention plans the drawing-up of which is the responsibility of authorities other than the State are sent to the State representative.
When this representative ascertains that an authority has not drawn up, re-examined or published a map or a plan within the deadlines provided for by articles L. 572-5 and L. 572-9, he or she performs this task with the related costs borne by this authority, after formal notification has been given.
Article L572-11 (Order no. 2004-1199 of 12 November 2004 Article 1 3, 4 Official Journal of 14 November 2004) (Act no. 2005-1319 of 26 October 2005 Article 4 II Official Journal of 27 October 2005)
A Conseil d'Etat decree stipulates the conditions of application of the present chapter.
TITLE VIII Protection of the living environment Articles L581-1 to
L582-1
CHAPTER I Advertising, signs and signposting Articles L581-1 to
L581-45
SECTION I General principles Articles L581-1 to
L581-3
Article L581-1 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
Each individual has the right to express and diffuse information and ideas, whatever their nature, by means of advertising, of signs and of signposting, in accordance with the laws and subject to the provisions of the present Chapter.
Article L581-2 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
In order to ensure the protection of the living environment, the present Chapter sets the rules applicable to advertising, signs and signposting visible from all public thoroughfares as defined by a Conseil d'Etat decree. These provisions do not apply to advertising, signs and signposting located inside premises, except if their use is principally that of an advertising material.
Article L581-3 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
For the purposes of the present Chapter: 1° Advertising, not including signs and signposting, is any inscription, shape or image destined to inform the public
or attract its attention, all devices whose main purpose is to bear the said inscriptions, shapes or images being assimilated with advertising;
2° A sign is any inscription, form or image affixed on a building and relating to an activity conducted there;
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ENVIRONMENTAL CODE 3° Signposting is any inscription, shape or image indicating the proximity of a building where a given activity is
conducted.
SECTION II Advertising Articles L581-4 to
L581-17
Subsection 1 General provisions Articles L581-4 to
L581-6
Article L581-4 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
I. - All advertising is forbidden: 1° On buildings listed as historic monuments or listed on the additional inventory; 2° On natural monuments or in listed sites; 3° In national parks and nature reserves; 4° On trees. II. - The Mayor or, failing that, the Préfet, at the request or after receiving the opinion of the Conseil Municipal and
after the opinion of the département commission competent in matters relating to sites, may also issue a ruling prohibiting all advertising on buildings of an aesthetic, historical or picturesque nature.
III. - The opinion of the département commission competent in matters relating to sites is deemed to be favourable if it does not reply within a period of two months as of the case being referred to it by the Préfet or of the request for the opinion of the commission sent by the Mayor to the Préfet.
Article L581-5 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
All advertising must mention, as applicable, the name and address or the name or company name of the person or legal entity which affixed it or had it affixed.
Article L581-6 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The installation, replacement or modification of the systems or equipment which bear publicity are subject to prior declaration to the Mayor and the Préfet under the conditions set by a Conseil d'Etat decree.
Subsection 2 Advertising outside built-up areas Article L581-7
Article L581-7 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
Outside those places qualified as "built-up areas" by the regulations relating to road traffic, all advertising is forbidden except in those zones designated as "authorised advertising zones".
These zones may be instituted, subject to the provisions of Article L. 581-4 in the immediate vicinity of commercial and industrial establishments, or of artisanal centres or in groups of dwellings.
They are defined under the conditions provided for in Article L. 581-14 and advertising in these zones is subject to the stipulations fixed by the rulings establishing the said zones.
Subsection 3 Advertising inside built-up areas Articles L581-8 to
L581-13
Article L581-8 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
I. - In built up areas, advertising is forbidden: 1° In the protection areas defined around listed sites or around listed historic monuments; 2° In protected sectors; 3° In regional parks. Exemption from this prohibition may only be granted by the establishment of restricted advertising zones. II. - Advertising in these areas is also prohibited: 1° In sites listed in the inventory and in the protected zones defined around them; 2° At a distance of less than 100 metres from, and within the field of visibility of buildings listed as historic
monuments or listed in the additional inventory or referred to in II of Article L. 581-4; 3° In zones for the protection of architectural, urban or landscape heritage. Exemption may be granted from this prohibition by the establishment of restricted advertising zones or of sectors
subject to the general system set out in application of Article L. 581-9. An exemption may be granted exceptionally, under the conditions set by a Conseil d'Etat decree, by the
establishment of an extended advertising zone when that advertising is a decisive factor in the activity of the places in question.
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ENVIRONMENTAL CODE The sectors subject to the general system are established in accordance with the procedure defined in Article L.
581-14. III. - In cases where no exemption is granted to the prohibitions provided for in I and II of the present Article, the
Mayor may authorise posting of opinions and advertising relating to the activities of associations, mentioned in Article L. 581-13, on worksite protection barriers under the conditions determined by a Conseil d'Etat decree.
IV. - Advertising may not cover all or part of an opening in a building. However, this prohibition is lifted when it is the front of an establishment temporarily closed for renovation or further to insolvency or liquidation proceedings or when several special regulation zones established in accordance with the procedure defined in L. 581-14 have provided for it.
Article L581-9 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
In built-up areas, and subject to the provisions of Articles L. 581-4, L. 581-8 and L. 581-10, advertising is admitted. However, it must comply, notably in terms of its position, surface, height and maintenance, with stipulations set by a Conseil d'Etat decree, according to the processes and systems used, the characteristics of the media and the size of the built-up areas in question. This decree also specifies the conditions of use of street furnishing installed in public places as advertising media.
The installation of luminescent advertising systems other than billboards lit by projectors or by backlighting, is subject to the authorisation of the Mayor.
Article L581-10 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
In all or part of a built-up area, restricted or extended advertising zones can be established in accordance with the procedure defined in Article L. 581-14. In these zones, advertising is subject to special stipulations set down by the ruling establishing the said zones.
Article L581-11 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
I. - The ruling establishing a restricted advertising zone subjects advertising in that zone to more restrictive stipulations than those of the system enforced by Article L. 581-9.
II. - It may also: 1° Determine in which conditions and in which places advertising is only admitted; 2° Prohibit advertising or categories of advertising defined according to the processes and systems used. III. - However, advertising on worksite protection barriers may not be prohibited, except when the said barriers are
installed in the places referred to in 1° and 2° of I of Article L. 581-8. IV. - All restricted advertising zones must contain one or several of the posting spaces referred to in Article L.
581-13, according to the terms set by the decree referred to in the said Article.
Article L581-12 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The ruling establishing an extended advertising zone subjects advertising in the said zone to stipulations that are less restrictive than those of the system enforced by Article L. 581-9.
Article L581-13 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
Subject to the provisions of the present Chapter, the Mayor determines by a ruling and has installed on public property or above it or on private property of the commune, one or several spaces for the posting of opinion and for advertising relating to the activities of non-profit associations. No fee or tax is collected for such posting or advertising.
In order to ensure freedom of opinion and to respond to the needs of associations, the terms of application of the present Article are set by a Conseil d'Etat decree according to the number of inhabitants and the surface area of the commune. This decree sets a minimum surface area that each category of communes must reserve for the posting defined in the preceding paragraph.
If, within a period of six months as of the effective date of that decree, the Mayor has not issued the ruling provided for in the first paragraph, the Préfet, after issuing a summons remaining without effect after a period of three months, determines the space or spaces necessary. The ruling of the Préfecture ceases to apply if a ruling of the Mayor comes into force determining one or several other spaces.
Subsection 4 Procedure establishing authorised advertising, restricted advertising or
extended advertising zones Article L581-14
Article L581-14 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
I. - The definition of authorised advertising zones, restricted advertising zones or extended advertising zones, as well as the stipulations applying to them, are established at the request of the Conseil Municipal.
The draft special regulations are prepared by a working group the composition of which is set by a ruling of the Préfecture. It is presided over by the Mayor who, in this capacity, has the deciding vote. It comprises, in equal numbers, members of the Conseil Municipal and, if applicable, a representative of the deliberative assembly of the inter-commune body competent in town planning matters, on the one hand and, on the other, representatives of the State departments.
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ENVIRONMENTAL CODE The Chambers of Commerce and Industry, the Professional Chambers, the Chambers of Agriculture, the local associations of users referred to in Article L. 121-8 of the Code de l'Urbanisme, and the representatives of the professions directly concerned, appointed under the conditions set by a Conseil d'Etat decree are, if they so request, associated with this working group in an advisory role.
The draft drawn up in this way is transmitted for an opinion to the commission of the département competent in matters relating to sites. This opinion is considered as being in favour if no response has been given within a period of two months.
The draft drawn up by the working group and having received the approval of the commission of the département competent in matters relating to sites, is validated by a ruling of the Mayor issued after a debate in the Conseil Municipal.
In case of a negative opinion from this commission or of the opposition of the Conseil Municipal, the working group deliberates again on a new project presented by the Préfet.
If, after this new deliberation, the Conseil Municipal opposes the project, modified as the case may be, presented by the Préfet or expresses reservations, the definition of the zones and the stipulations applied there are set by a ruling of the Préfecture or, at the request of the Mayor, by a ministerial ruling.
The definition of the zones and the stipulations applied there may be modified in accordance with the same procedures as those applied to their establishment.
In the absence of a proposal from the Conseil Municipal, the Préfet may, after consulting with the Mayor, constitute ex officio the working group provided for in the present Article.
II. - With a view to presenting a common project, neighbouring communes, even from different départements, may constitute a single working group presided over by the Mayor of one of the communes concerned who, in this capacity, has a deciding vote.
The composition and rules of procedure of the working group mentioned in the previous paragraph, as well as the procedure for defining authorised advertising zones, restricted advertising zones and extended advertising zones and establishing the stipulations applied there, are governed by the provisions of paragraph I of the present Article, subject to any necessary adaptations set by a Conseil d'Etat decree.
Subsection 5 Particular provisions applicable to certain forms of advertising Articles L581-15 to
L581-17
Article L581-15 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
Advertising on vehicles for use on land, on sea or in the air may be regulated, subordinated to authorisation or prohibited, under the conditions set by a Conseil d'Etat decree.
However, the provisions of the preceding paragraph are not applicable to advertising relating to the activity conducted by the owner or user of the vehicle, on condition that the vehicle is not used or equipped essentially for advertising purposes.
Article L581-16 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The communes have the right not to make use for their own benefit as a medium for commercial advertising or free posting defined in Article L. 581-13 of worksite protection barriers when their installation gave rise to a highways authorisation.
Article L581-17 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
A Conseil d'Etat decree determines the conditions under which advertising can be exempted from the provisions of the present section when it is conducted for the application of a legislative or regulatory provision or a legal decision, or when it is intended to inform the public of the dangers it incurs or the obligations incumbent on it in the places in question.
SECTION III Signs and signposting Articles L581-18 to
L581-20
Article L581-18 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
A Conseil d'Etat decree sets the general stipulations relating to the installation and maintenance of signs according to the processes used, the nature of the activities, the characteristics of the buildings in which these activities are conducted and the character of the places where these buildings are located.
The rulings establishing authorised advertising zones, restricted advertising zones and extended advertising zones can include stipulations relating to signs.
The decree referred to in the first paragraph of the present Article sets the conditions in which these stipulations may be adapted to local circumstances when the provisions of the second paragraph have not been enforced.
On the buildings and in the places referred to in Articles L. 581-4 and L. 581-8, as well as in restricted advertising zones, the installation of a sign is subject to authorisation.
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ENVIRONMENTAL CODE Signs with laser beams are subject to the authorisation of the Préfet.
Article L581-19 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
Signposting is subject to the provisions governing advertising. The provisions relating to the declaration provided for in Article L. 581-6 are applicable to signposting subject to
conditions, notably of dimensions, specified by a Conseil d'Etat decree. A Conseil d'Etat decree determines the cases and the conditions in which the installation of signposting can be
exempted from the provisions referred to in the first paragraph of the present Article when the purpose is to indicate activities that are either particularly useful for people travelling or are linked to public or emergency services, or are conducted at a distance from the public thoroughfare, or relate to the manufacture or sale of local produce by local companies.
Article L581-20 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
I. - The decree provided for in Article L. 581-18 determines the conditions in which signs can be affixed temporarily on buildings to announce:
1° Exceptional operations concerning the said buildings or relating to the activities conducted in them; 2° Exceptional events of a cultural or tourist nature which are being, or are to be held there. II. - The decree provided for in Article L. 581-19 determines the conditions in which signposting can be affixed
temporarily indicating the proximity of the buildings mentioned in paragraph I. III. - The decree provided for in Article L. 581-19 determines the conditions in which signposting can be affixed
indicating the proximity of monuments, historic or listed buildings which are open to visitors.
SECTION IV Common provisions Articles L581-21 to
L581-24
Article L581-21 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The authorisations provided for in sections 2 and 3 of the present Chapter are granted on behalf of the State. When these authorisations are refused, the grounds for the decision must be given.
A Conseil d'Etat decree sets the period of time on expiry of which failure to give notice of the decision by the competent authority is deemed to mean that the authorisation has been granted. This period of time may not exceed two months from reception of the application.
The said period of time may be extended to four months for authorisations relating to the installation of signs on buildings listed as historic monuments or listed on the additional inventory, as well as in listed sites or protected sectors.
Article L581-22 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
When it is consulted in application of the present Chapter, the commission of the département competent in matters relating to sites also includes representatives of the commune and the professions concerned, under the conditions set by a Conseil d'Etat decree.
Article L581-23 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The texts and documents relating to the stipulations governing advertising in the commune are held at the disposal of the public at the Mairie.
Article L581-24 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
Nobody may affix advertising or install signposting on a building without the written authorisation of the owner.
SECTION V Advertising space rental contracts Article L581-25
Article L581-25 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The contract to rent a private space for the purposes of affixing advertising or installing signposting is made in writing. It is concluded for a period which may not exceed six years as of its signature. It may be renewed by tacit agreement by periods of no more than one year unless terminated by one of the parties at least three months before the expiry date.
The lessee must keep the space rented in a good state of repair. Failing this, and after issue of a summons, the lessor may obtain, after a period of one month has expired, on application to the summary proceedings judge, either the performance of the necessary work or the termination of the contract and the rehabilitation of the place in question at the expense of the lessee, the choice being made by the lessor.
Failing payment of the rent, the contract is automatically terminated to the benefit of the lessor, after a summons to pay remaining without effect for a period of one month.
The lessee must return the space rented to the condition it was in prior to the contract within three months following
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ENVIRONMENTAL CODE expiry of the contract.
The contract must include the reproduction of the preceding four paragraphs. The provisions of the present Article are matters of public order.
SECTION VI Sanctions Articles L581-26 to
L581-45
Subsection 1 Administrative procedure Articles L581-26 to
L581-33
Article L581-26 (Order no. 2000-914 of 18 September 2000 Article 12 3° Official Journal of 21 September 2000 in force on 1st January 2001) (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
Without prejudice to the provisions of Articles L. 581-30 and L. 581-34, any person affixing or having others affix a system or material referred to in Article L. 581-6 without a prior declaration or not in compliance with the declaration made, is punishable by a fine of 750 euros. The infringement is ascertained by a report drawn up by a civil servant or an official mentioned in Article L. 581-40. A copy of the report is sent to the person concerned. The infringement reported in this way gives rise to a fine pronounced by the Préfet. The fine is collected under the conditions provided for by the provisions relating to the income of the commune and to the benefit of the commune on the territory of which the said infringement was reported. The person concerned has access to the file and is given the opportunity to submit written remarks, within a period of one month, on the sanction planned by the administration. The decision of the Préfet must explain the grounds on which it is based and is subject to appeal with unlimited jurisdiction.
The provisions of the present Article are applicable in case of infringement of the provisions of Articles L. 581-4, L. 581-5 and L. 581-24.
Article L581-27 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
As soon as irregular advertising, a sign or signposting in relation to the provisions of the present Chapter or its enactments is reported, and notwithstanding the prescription or amnesty of the infringement, the Mayor or the Préfet issues a ruling ordering, within a period of fifteen days, either that the advertising, signs or signposting in question be removed or that they be rendered compliant with the said provisions, as well as the rehabilitation of the place in question, if the need should arise.
Notice of this ruling is served to the person who affixed, had others affix or kept in place after receipt of a summons, the irregular advertising, signs or signposting.
If the said person is not known, notice of the ruling is served to the person on behalf of whom the advertising, signs or signposting were made.
Article L581-28 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
In cases where the declaration mentioned in Article L. 581-6 shows that the system declared does not comply with the legislative and regulatory provisions, the Mayor or the Préfet issues a ruling ordering the declarant either to remove the system or question or to render it compliant within a period of fifteen days as of the date of receipt of the said ruling. If this has not been done at the end of this period of time, the declarant must pay late performance penalties under the conditions provided for in Article L. 581-30.
Article L581-29 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
As soon as irregular advertising in relation to the provisions of Articles L. 581-4, L. 581-5 or L. 581-24 is reported, the Mayor or the Préfet may have the said advertising removed immediately ex officio. However, if the advertising has been affixed in or on private property, the enforcement is subject to the request of the owner or to the owner being informed in advance by the administrative authority. The cost of performance is borne by the person having affixed or had others affix the said advertising. If the identity of that person is not known, the costs are at the expense of the person for whom the advertising was made.
Article L581-30 (Order no. 2000-914 of 18 September 2000 Article 12 4° Official Journal of 21 September 2000 in force on 1st January 2001) (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 en force on 1st January 2002) (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
On expiry of the period of fifteen days starting on the day notice of the ruling was served, the person served notice owes late performance penalties of an amount of 84.61 (1) euros peer day and per advertisement, sign or signpost kept
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ENVIRONMENTAL CODE in place. This amount is reassessed each year on the basis of the cost of living, under the conditions set by a Conseil d'Etat decree.
The late performance penalties are not applicable to posting of opinion or advertising relating to the activities of associations, mentioned in Article L. 581-13, except when the said advertising or posting has been affixed in an advertising space prohibited by the application of a contract signed between the operator of the said space and the person on behalf of whom the advertising or posting was made.
The late performance penalty is collected, under the conditions provided for by the provisions relating to the income of the communes, for the benefit of the commune on the territory of which the facts were ascertained. If the Mayor should fail to calculate the product of the penalty, to make out the statements necessary for its collection and to have it sent to the Préfet within one month of being invited by the latter to do so, the debt is calculated and collected for the benefit of the State.
The Mayor of the Préfet, after receiving the opinion of the Mayor, may consent to a reduction or a partial refund of the product of the late performance penalty when the work required by the ruling has been performed and the person concerned proves that he or she could not meet the date limit set for full performance of his or her obligations for reasons beyond his or her control.
NB: (1) For the year 2004, the amount of the late performance penalty is increased to 85.80 euros by application of the INSEE index published in the Official Journal of the French Republic of 28 February 2004.
For the year 2005, the amount of the late performance penalty is increased to 87.15euros by application of the INSEE index published in the Official Journal of the French Republic of 26 February 2005.
Article L581-31 (Act no. 2003-591 of 2 July 2003 Article 31 III 20° Official Journal of 3 July 2003) (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
Without prejudice to the application of the provisions of Article L. 581-30, the Mayor or the Préfet has the work stipulated by the ruling referred to in Article L. 581-27 carried out ex officio, in whatever place it might be, if the said work was not performed within the period of time set by this ruling.
The cost of this performance of the work is met by the person who was served notice of the ruling, except if the application of the provisions of this ruling relating to the late performance penalties has been suspended by the Administrative Judge ruling in a summary proceeding.
The administration is required to inform the person who is the owner or occupant of the premises of the date when work will commence at least eight days in advance.
Article L581-32 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
When advertising or signposting violates the provisions of the present Chapter or of its enactments, the Mayor or the Préfet is required to make use of the powers granted to them by Article L. 581-27, if the associations mentioned in Article L. 141-1 or the owner of the building on which the advertising or signposting have been affixed without their approval request it.
Article L581-33 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The Mayor or the Préfet, as the case may be, sends the Procureur de la République a copy of the summons provided for in Article L. 581-27 and informs him immediately of the response reserved to it.
Subsection 2 Criminal sanctions Articles L581-34 to
L581-45
Article L581-34 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Act no. 2003-591 of 2 July 2003 Article 31 III 22° Official Journal of 3 July 2003) (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
I. - A fine of 3 750 euros punishes the fact of affixing, having others affix or keeping in place after a summons has been served, advertising, signs or signposting:
1° In the places or spaces or according to processes prohibited by virtue of Articles L. 581-4, L. 581-7, L. 581-8, L. 581-15, L. 581-18 and L. 581-19;
2° Without having obtained the prior authorisations provided for in sections 2 and 3 of the present Chapter or without having complied with the conditions applied by these authorisations or without having made the prior declaration provided for in Article L. 581-6 or having made a false declaration;
3° Without having complied, in restricted advertising zones, with the particular provisions regulating advertising there.
II. - The same sentences apply to the fact of leaving in place advertising, signs or signposting beyond the time limits imposed for rendering it compliant by Article L. 581-43, as well as the fact of opposing the performance of the work provided for by Article L. 581-31 or the fact of obstructing the accomplishing of the inspections or the exercise of the functions of the officials referred to in Article L. 581-40.
III. - The fine is applied as many times as there are non-compliant advertisements, signs or signposts.
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ENVIRONMENTAL CODE Article L581-35 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The same sentences apply to the person committing the infringement, the person on whose behalf the advertising was made, when the advertising or advertising system does not include the information referred to in Article L. 581-5 or when that information is incorrect or incomplete.
In the case of advertising of an electoral nature, the competent administrative authority issues a summons to the person on whose behalf the advertising was made to remove it and to return the place to its initial condition within two clear days. If the summons produced the required effect, the provisions of the preceding paragraph are not applicable.
Article L581-36 (Order no. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September 2000 in force on 1st January 2002) (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
In case of conviction, the court orders either the removal, within a period which may not exceed one month and subject to a late performance penalty of 7.5 to 75 euros per day of delay, of the advertising, signs or signposting constituting the infringement, or that they be rendered compliant, within the same period of time and in the same conditions, with the stipulations which they violate; it orders, if applicable, the restoring of the premises to their normal state. It may declare the decision to be provisionally enforceable.
Article L581-37 (Act no. 2003-591 of 2 July 2003 Article 31 III 21° Official Journal of 3 July 2003) (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The late performance penalty may only be reviewed by the court if the person concerned proves that he or she could not meet the time limit set for the full performance of their obligations for reasons beyond his or her control. The penalty is collected under the conditions provided for in the third paragraph of Article L. 581-30.
Article L581-38 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The prescription of public action commences only from the day on which the advertising, signs or signposting infringing the provisions of the present Chapter and of the regulations issued for its application is removed or rendered compliant with the provisions it violated.
Article L581-39 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The provisions of Articles L. 581-35, L. 581-36, L. 581-37 and L. 581-38 and the rules relating to complicity are applicable to violations of the regulatory provisions made for the application of the present Chapter.
Article L581-40 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
I. - For the application of Articles L. 581-27, L. 581-34 and L. 581-39, the following are accredited to carry out all necessary investigations, as well as the judiciary police:
1° The officials of the judiciary police mentioned in Articles 20 and 21 of the Code de procédure pénale; 2° The civil servants and officials accredited to report infringements of the laws of 31 December 1913 on historic
monuments and under Title IV of Book III of the present code; 3° The civil servants and officials accredited to ascertain infringements of the provisions of the Code de la voirie
routière; 4° The civil servants and public officials accredited to ascertain infringements of the Code de l'Urbanisme; 5° Engineers of the road construction and maintenance department, the public works engineers of the State and the
officials of the maritime ports appointed for this purpose; 6° The officials accredited by the local authorities to ascertain infringements of the Code de la route in terms of
stopping and parking of motor vehicles by virtue of Article L. 24 of the said code. II. - The above officials and civil servants accredited to ascertain infringements transmit their reports to the
Procureur de la République, the Mayor and the Préfet.
Article L581-41 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The amount of the fines pronounced for the application of Articles L. 581-34 and L. 581-35 is subject to a surcharge of 50%, collected for the benefit of the local authorities. The sums thus collected constitute one of the sources of income of the local finance committee created by Article L. 1211-1 of the Code Général des Collectivités Territoriales.
Article L581-42 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The provisions of the present section apply neither to the posting of opinions not to advertising relating to the activities of associations, mentioned in Article L. 581-13, if the Mayor or the Préfet has not determined and fitted out the space or spaces provided for in the same Article.
Article L581-43 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The advertising, signs and signposting installed before the effective date of the enactments of Articles L. 581-4,
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ENVIRONMENTAL CODE penultimate paragraph, L. 581-7, L. 581-8, L. 581-10 and L. 581-18, second and third paragraphs, and which do not comply with their stipulations, as well as those installed in places entering within the scope of application of Articles L. 581-4, L. 581-8 and L. 581-44 by virtue of rulings dated after their installation, may, subject to their not violating the previous regulations, be kept in place for a period of two years as of the effective date of the aforementioned rulings.
The advertising, signs and signposting which are subject to authorisation by virtue of the present Chapter and which were installed before the effective date of the regulations referred to in the previous paragraph, may, subject to their not violating the previous regulations, be kept in place for a period of two years as of the decision of the competent administrative authority ordering their removal or modification.
Article L581-44 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The decrees approved by the Conseil d'Etat mentioned in Articles L. 581-9 and L. 581-18 and, if applicable, the enactments of Articles L. 581-7 and L. 581-10, determine those of the stipulations enacted for the application of the Code de l'Urbanisme in terms of the position, height and appearance of constructions, and the method of enclosure of real-estate property which are, by virtue of the present law, applicable to the installation of the systems mentioned in the second paragraph of Article L. 581-3, of signs and of signposting.
They also determine the terms of application of the provisions relating to advertising, signs and signposting included in the regulation attached in the appendices to a conservation and improvement plan that has been made public or approved.
In order to ensure compliance with the stipulations and provisions referred to in the previous two paragraphs, a Conseil d'Etat decree defines the cases and conditions in which the fixation onto the ground or direct installation on the ground of advertising, of the systems mentioned in the second paragraph of Article L. 581-3, of signs and signposting are subject to prior authorisation.
Article L581-45 (Order no. 2004-1199 of 12 November 2004 Article 1 1 Official Journal of 14 November 2004)
The terms of application of the present Chapter are defined by a Conseil d'Etat decree.
CHAPTER II Prevention of visual nuisances Article L582-1
Article L582-1 (Inserted by Order no. 2004-1199 of 12 November 2004 Article 1 2 Official Journal of 14 November 2004)
The installation of new overhead electric power lines with voltage of less than 63,000 volts is prohibited as of 1st January 2000 in densely inhabited zones defined by a Conseil d'Etat decree.
When absolute technical necessities or topographical constraints render the burying of the lines impossible, or when the impact of the said burying is judged greater than that of the installation of an overhead line, an exemption may be granted to this prohibition, exceptionally, by a joint ruling of the Minister for Energy and the Minister for the Environment.
The terms of application of the present Chapter are defined by a Conseil d'Etat decree.
BOOK VI Provisions applicable in New Caledonia, French Polynesia, the Wallis and Futuna Islands, French Southern and Antarctic Territories and Mayotte
Articles L611-1 to L656-1
TITLE I Provisions applicable in New Caledonia Articles L611-1 to
L614-1
CHAPTER I Approval and right of legal action for environmental protection associations Articles L611-1 to
L611-4
Article L611-1 Once they have been engaged in activity for at least three years, properly certified associations, which conduct their
statutory activities in the fields of nature protection, environmental improvement, water, air, ground, site and landscape protection, and town planning, or whose purpose is to fight pollution and nuisance, and which in general mainly work for the protection of the environment, may be subject to approval given by the administrative authority.
These associations are called "approved environmental protection associations". This approval is granted under the conditions provided for by a Conseil d'Etat decree. It may be withdrawn, should
the association no longer comply with the conditions that led to it being issued. The decisions made in application of the present Article are subject to full jurisdiction proceedings.
Article L611-2 Any association working for the protection of nature and the environment may engage in proceedings before
administrative jurisdictions for any grievance that may concern them. Any environmental protection association, certified in accordance with Article L. 611-1, is entitled to take action
against any administrative decision that is directly related to its purpose and statutory activities, and produces damaging effects on the environment over all or part of the territory for which it has received approval.
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ENVIRONMENTAL CODE Article L611-3
The certified associations mentioned in Article L. 611-1 may exercise the rights granted to the civil party with regard to events which adversely affect, either directly or indirectly, the collective interest that it is their purpose to defend, and which constitute an infringement of provisions concerning environmental and nature protection, environmental improvement, water, air, ground, site and landscape protection, and town planning, or those concerning the fight against pollution and nuisance.
Article L611-4 When several identified individuals have been subjected to individual prejudices, which have been caused by the
action of the same person and which have a common origin, in the fields mentioned in Article L. 611-3, any association certified in accordance with Article L. 611-1 may, if it has been so authorised by at least two of the individuals concerned, act on behalf of them before any jurisdiction to obtain compensation.
Authorisation may not be solicited. It must be given in writing by each individual concerned. Any individual who has given his or her consent for bringing an action before a criminal court is considered, in this
case, to be exercising the rights granted to the civil party in application of the Code de procédure pénale. All forms of notification shall however be sent to the association.
An association which brings an action before a court in application of the provisions in the previous paragraphs may claim damages before the Juge d'Instruction or the tribunal entertaining jurisdiction for the head office of the company in question or the scene of the first infringement.
CHAPTER II Marine waters and waterways open to maritime shipping Articles L612-1 to
L612-2
Article L612-1 (Order no. 2005-805 of 18 July 2005 Article 18 II Official Journal of 19 July 2005)
Articles L. 218-1 to L. 218-72, with the exception of II of article L. 218-44, apply to New Caledonia, subject to the competence devolved upon New Caledonia and the provinces within territorial waters.
Article L612-2 (Order no. 2005-805 of 18 July 2005 Article 18 III Official Journal of 19 July 2005)
In the event of there being no administrators of maritime affairs, dockmasters or assistant dockmasters, the powers that are devolved upon them by the provisions mentioned in section I of Article L. 612-1 are exercised by the State representative or by one of his or her representatives.
CHAPTER III Antarctic Article L613-1
Article L613-1 (Inserted by Act no. 2003-347 of 15 April 2003 Article 2 Official Journal of 16 April 2003)
Articles L. 711-1 to L. 713-9 shall apply to New Caledonia.
CHAPTER IV Other provisions Article L614-1
Article L614-1 (Inserted by Act no. 2003-591 of 02 July 2003 Article 31 III 23° Official Journal of 03 July 2003)
Articles L. 229-1 to L. 229-4 shall apply to New Caledonia.
TITLE II Provisions applicable in French Polynesia Articles L621-1 to
L624-1
CHAPTER I Approval and right of legal action for environmental protection associations Articles L621-1 to
L621-4
Article L621-1 Once they have been engaged in activity for at least three years, properly certified associations, which conduct their
statutory activities in the fields of nature protection, environmental improvement, water, air, ground, site and landscape protection, and town planning, or whose purpose is to fight pollution and nuisance, and which in general mainly work for the protection of the environment, may be subject to approval given by the administrative authority.
These associations are called "approved environmental protection associations". This approval is granted under the conditions provided for by a Conseil d'Etat decree. It may be withdrawn, should
the association no longer comply with the conditions that led to it being issued. The decisions made in application of the present Article are subject to full jurisdiction proceedings.
Article L621-2 Any association working for the protection of nature and the environment may engage in proceedings before
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ENVIRONMENTAL CODE administrative jurisdictions for any grievance that may concern them.
Any environmental protection association, certified in accordance with Article L. 621-1, is entitled to take action against any administrative decision that is directly related to its purpose and statutory activities, and produces damaging effects on the environment over all or part of the territory for which it has received approval.
Article L621-3 The certified associations mentioned in Article L. 621-1 may exercise the rights granted to the civil party with regard
to events which adversely affect, either directly or indirectly, the collective interest that it is their purpose to defend, and which constitute an infringement of provisions concerning environmental and nature protection, environmental improvement, water, air, ground, site and landscape protection, and town planning, or those concerning the fight against pollution and nuisance.
Article L621-4 When several identified individuals have been subjected to individual prejudices, which have been caused by the
action of the same person and which have a common origin, in the fields mentioned in Article L. 621-3, any association certified in accordance with Article L. 621-1 may, if it has been so authorised by at least two of the individuals concerned, act on behalf of them before any jurisdiction to obtain compensation.
Authorisation may not be solicited. It must be given in writing by each individual concerned. Any individual who has given his or her consent for bringing an action before a criminal court is considered, in this
case, to be exercising the rights granted to the civil party in application of the Code de procédure pénale. All forms of notification shall however be sent to the association.
An association which brings an action before a court in application of the provisions in the previous paragraphs may claim damages before the Juge d'Instruction or the tribunal entertaining jurisdiction for the head office of the company in question or, failing which, the scene of the first infringement.
CHAPTER II Marine waters and waterways open to maritime shipping Articles L622-1 to
L622-2
Article L622-1 (Order no. 2005-805 of 18 July 2005 Article 19 II Official Journal of 19 July 2005)
Articles L. 218-1 to L. 218-72, with the exception of II of article L. 218-44, apply to French Polynesia, subject to the competence devolved upon the territory within territorial waters.
Article L622-2 (Order no. 2005-805 of 18 July 2005 Article 19 III Official Journal of 19 July 2005)
In the event of there being no administrators of maritime affairs, dockmasters or assistant dockmasters, the powers that are devolved upon them by the provisions mentioned in section I of Article L. 622-1 are exercised by the State representative or by one of his or her representatives.
CHAPTER III Antarctic Article L623-1
Article L623-1 (Inserted by Act no. 2003-347 of 15 April 2003 Article 2 Official Journal of 16 April 2003)
Articles L. 711-1 to L. 713-9 apply to French Polynesia.
CHAPTER IV Other provisions Article L624-1
Article L624-1 (Inserted by Act no. 2003-591 of 02 July 2003 Article 31 III 24° Official Journal of 03 July 2003)
Articles L. 229-1 to L. 229-4 shall apply to French Polynesia.
TITLE III Provisions applicable in Wallis and Futuna Articles L631-1 to
L635-1
CHAPTER I Approval and right of legal action for environmental protection associations Articles L631-1 to
L631-4
Article L631-1 Once they have been engaged in activity for at least three years, properly certified associations, which conduct their
statutory activities in the fields of nature protection, environmental improvement, water, air, ground, site and landscape protection, and town planning, or whose purpose is to fight pollution and nuisance, and which in general mainly work for the protection of the environment, may be subject to approval given by the administrative authority.
These associations are called "approved environmental protection associations". This approval is granted under the conditions provided for by a Conseil d'Etat decree. It may be withdrawn, should
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ENVIRONMENTAL CODE the association no longer comply with the conditions that led to it being issued.
The decisions made in application of the present Article are subject to full jurisdiction proceedings.
Article L631-2 Any association working for the protection of nature and the environment may engage in proceedings before
administrative jurisdictions for any grievance that may concern them. Any environmental protection association, certified in accordance with Article L. 631-1, is entitled to take action
against any administrative decision that is directly related to its purpose and statutory activities, and produces damaging effects on the environment over all or part of the territory for which it has received approval.
Article L631-3 The certified associations mentioned in Article L. 631-1 may exercise the rights granted to the civil party with
regards to events which adversely affect, either directly or indirectly, the collective interest that it is their purpose to defend, and which constitute an infringement of provisions concerning environmental and nature protection, environmental improvement, water, air, ground, site and landscape protection, and town planning, or those concerning the fight against pollution and nuisance.
Article L631-4 When several identified individuals have been subjected to individual prejudices, which have been caused by the
actions of the same person and which have a common origin, in the fields mentioned in Article L. 631-3, any association certified in accordance with Article L. 631-1 may, if it has been so authorised by at least two of the individuals concerned, act on behalf of them before any jurisdiction to obtain compensation.
Authorisation may not be solicited. It must be given in writing by each individual concerned. Any individual who has given his or her consent for bringing an action before a criminal court is considered, in this
case, to be exercising the rights granted to the civil party in application of the Code de procédure pénale. All forms of notification shall however be sent to the association.
An association which brings an action before a court in application of the provisions in the previous paragraphs may claim damages before the Juge d'Instruction or the tribunal entertaining jurisdiction for the head office of the company in question or, failing which, the scene of the first infringement.
CHAPTER II Marine waters and waterways open to maritime shipping Articles L632-1 to
L632-2
Article L632-1 (Order no. 2005-805 of 18 July 2005 Article 20 II Official Journal of 19 July 2005)
Articles L. 218-1 to L. 218-72, with the exception of II of article L. 218-44, apply to the Wallis and Futuna Islands.
Article L632-2 (Order no. 2005-805 of 18 July 2005 Article 20 III Official Journal of 19 July 2005)
In the event of there being no administrators of maritime affairs, dockmasters or assistant dockmasters, the powers that are devolved upon them by the provisions mentioned in section I of Article L. 632-1 are exercised by the State representative or by one of his or her representatives.
CHAPTER III Water intended for human consumption, wastewater and products, and the fight
against neighbourhood noise and atmospheric pollution Article L633-1
Article L633-1 Specific provisions concerning the quality of water intended for human consumption, the drainage, treatment,
disposal and use of waste water and products, and the fight against neighbourhood noise and atmospheric pollution of domestic origin are set forth in Article L. 1523-2 of the Code de la santé publique.
CHAPTER IV Antarctic Article L634-1
Article L634-1 (Inserted by Act no. 2003-347 of 15 April 2003 Article 2 Official Journal of 16 April 2003)
Articles L. 711-1 to L. 713-9 apply to the Wallis and Futuna Islands.
CHAPTER V Other provisions Article L635-1
Article L635-1 (Inserted by Act no. 2003-591 of 02 July 2003 Article 31 III 25° Official Journal of 03 July 2003)
Articles L. 229-1 to L. 229-4 apply to the Wallis and Futuna Islands.
TITLE IV
Updated 04/10/2006 - Page 193/201
ENVIRONMENTAL CODE Provisions applicable in the French Southern and Antarctic Territories Articles L640-1 to
L640-3
Article L640-1 (Act no. 2003-591 of 02 July 2003 Article 31 III 26° Official Journal of 03 July 2003) (Order no. 2005-805 of 18 July 2005 Article 21 II Official Journal of 19 July 2005)
I. - Articles L. 122-1 to L. 122-3, L. 141-1 to L. 142-3, L. 218-1 to L. 218-72, L. 229-1 to L. 229-4, L. 332-1 to L. 332-14, L. 332-16 to L. 332-27, L. 411-1 to L. 411-4 and L. 412-1 to L. 415-5 apply to the French Southern and Antarctic Territories. II. - The powers devolved upon the Préfet by the provisions mentioned in section I are exercised by the State representative.
III. - Provisions concerning the protection of natural monuments and sites are set forth in Act no. 56-1106 of 03 November 1956, which aims to protect sites and monuments of a historical, scientific, artistic or picturesque nature, classify historical, scientific or ethnographical objects and regulate excavation work in the territories which come under the authority of the French Ministry for Overseas Départements and Territories.
Article L640-2 In the event of there being no administrators of maritime affairs, dockmasters or assistant dockmasters, the powers
that are devolved upon them by the provisions mentioned in section I of Article L. 640-1 are exercised by the government of the French Republic's representative or by one of his or her representatives.
Article L640-3 (Inserted by Act no. 2003-347 of 15 April 2003 Article 2 Official Journal of 16 April 2003)
Articles L. 711-1 to L. 713-9 apply to the French Southern and Antarctic Territories.
TITLE V Provisions applicable in Mayotte Articles L651-1 to
L656-1
CHAPTER I Common provisions Articles L651-1 to
L651-7
Article L651-1 (Act no. 2001-616 of 11 July 2001 Article 51 I Official Journal of 13 July 2001) (Order no. 2005-869 of 28 July 2005 Article 2 Official Journal of 29 July 2005, in force on 1st January 2006)
The present Code applies to Mayotte, subject to the adaptations provided for by the present Title. For application of the provisions of the present code to Mayotte: 1 Reference to the département, the overseas département or the region is replaced by reference to the
département authority of Mayotte; 2 Reference to the general councils or regional council is replaced by reference to the general council of Mayotte; 3 The words "President of the regional council" are replaced by the words "President of the general council"; 4 The words "State representative in the département", "Préfet", "regional Préfet" or "Préfet coordinating the basin"
are replaced by the words "State representative in Mayotte"; 5 Reference to the département directorate for agriculture and forestry is replaced by reference to the directorate for
agriculture and forestry; 6 The words "administrator of maritime affairs" are replaced by the words "head of the maritime affairs department"; 7 the words "tribunal d'instance" and "tribunal de grande instance" are replaced by the words "tribunal de première
instance"; 8 The words "cour d'appel" are replaced by the words "tribunal supérieur d'appel".
Article L651-2 The rulings and decisions which must be made by a Minister in accordance with the provisions of the present code
applicable to Mayotte are made jointly by the aforementioned minister and the Minister for Overseas Départements and Territories.
Article L651-3 (Order no. 2005-869 of 28 July 2005 Article 3 Official Journal of 29 July 2005, in force on 1st January 2006)
For application of the provisions of the enacted parts of the present code, which provide for a public enquiry, to Mayotte, this formality is replaced by public access to the dossier. A ruling of the State representative specifies, notably, the content of the dossier placed at the disposal of the public, and the duration and conditions of this access to the public.
However, the State representative in Mayotte may decide to submit for public enquiry categories of developments, structures or works which, by their nature, size or location, are likely to be harmful to the environment.
Article L651-4 (Act no. 2001-616 of 11 July 2001 Article 51 II Official Journal of 13 July 2001) (Act no. 2003-591 of 02 July 2003 Article 31 III 19° Official Journal of 03 July 2003) (Order no. 2005-869 of 28 July 2005 Article 4 Official Journal of 29 July 2005, in force on 1st January 2006)
Updated 04/10/2006 - Page 194/201
ENVIRONMENTAL CODE I - Articles L. 122-11, L. 151-1 and L. 151-2 do not apply to Mayotte. II - For application of Article L. 132-2 to Mayotte, the words "and the Regional Forest Ownership Committees" are
deleted.
Article L651-5 (Order no. 2005-869 of 28 July 2005 Article 5 I Official Journal of 29 July 2005, in force on 1st January 2006)
I. - Notwithstanding the provisions of I of article L. 122-3, the methods of application of the first section of Chapter II of Title II of Book I are set by a ruling of the State representative in Mayotte, under the conditions provided for in II of the same article.
II. - Notwithstanding the provisions of the first paragraph of article L. 122-4, the list of plans, schemes, programmes and other planning documents which are subject to an environmental evaluation under the conditions provided for by Section II of Chapter II of Title II of Book I is drawn up by a ruling of the State representative in Mayotte.
III. - The conditions of application of Section II of Chapter II of Title II of Book I are specified, as needs be, for each category of plans or documents, by a ruling of the State representative in Mayotte.
Article L651-6 (Order no. 2005-869 of 28 July 2005 Article 5 I Official Journal of 29 July 2005, in force on 1st January 2006)
Notwithstanding the provisions of II of article L. 125-1, the methods for exercising the right to information as stipulated in the said article, notably the modes by which this information is brought to the awareness of the public, are set by a ruling of the State representative in Mayotte.
Article L651-7 (Order no. 2005-869 of 28 July 2005 Article 5 I Official Journal of 29 July 2005, in force on 1st January 2006)
Notwithstanding the provisions of the fifth paragraph of article L. 126-1, the declaration of a project is published under the conditions set by a ruling of the State representative in Mayotte.
CHAPTER II Physical environments Articles L652-1 to
L652-8
Article L652-1 (Act no. 2001-616 of 11 July 2001 Article 51 III Official Journal of 13 July 2001) (Act no. 2003-591 of 02 July 2003 Article 31 III 27° Official Journal of 03 July 2003) (Act no. 2004-338 of 21 April 2004 Article 9 II Official Journal of 22 April 2004) (Order no. 2005-869 of 28 July 2005 Article 6 I Official Journal of 29 July 2005, in force on 1st January 2006)
I. - Articles L. 213-5 to L. 213-7 do not apply to Mayotte. II. - In the event of there being no administrators of maritime affairs, dockmasters or assistant dockmasters, the
powers that are devolved upon them by the provisions mentioned in section I are exercised by the State representative or by one of his or her representatives.
III. - The provisions of the Code de la santé publique mentioned in Articles L. 211-11 and L. 214-14 of the present code, under the conditions stipulated in Article L. 1515-1 of the Code de la santé publique also apply.
Article L652-2 (Order no. 2005-869 of 28 July 2005 Article 6 II Official Journal of 29 July 2005, in force on 1st January 2006)
The State representative ensures the conservation, management and policing of superficial and underground waters within the territory of Mayotte.
It sets out appropriate provisions for maintaining the free flow and distribution of waters in addition to preserving safety and public health.
It exercises the attributions granted to State administrative authorities for the application of the provisions of Chapters I to VII of Title I in Book II.
It may complete applicable regulations concerning the conservation, management and protection of waters with a view to protecting the lagoon, coastal and coral reef waters from pollution.
Article L652-3 (Order no. 2005-869 of 28 July 2005 Article 6 III Official Journal of 29 July 2005, in force on 1st January 2006) (Order no. 2005-869 of 28 July 2005 Article 6 IV Official Journal of 29 July 2005, in force on 1st January 2006)
For application of the provisions of Title I of Book II, Mayotte constitutes a catchment area. The Water Basin Committee of Mayotte exercises the competences provided for in articles L. 213-2 and L. 213-4. A Water Office is set up in Mayotte, governed by the provisions of articles L. 213-13 to L. 213-20.
Article L652-4 (Inserted by Order no. 2005-869 of 28 July 2005 Article 6 IV Official Journal of 29 July 2005, in force on 1st January 2006)
For application of article L. 213-13, reference to article L. 3241-1 of the Code Général des Collectivités Territoriales is replaced by reference to article L. 3554-1 of the same Code.
Article L652-5 (Inserted by Order no. 2005-869 of 28 July 2005 Article 6 IV Official Journal of 29 July 2005, in force on 1st January 2006)
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ENVIRONMENTAL CODE Notwithstanding the provisions of the first paragraph of article L. 221-2, a measure for the monitoring of air quality
and its effects on health and the environment must be put in place in Mayotte before 1st January 2010.
Article L652-6 (Inserted by Order no. 2005-869 of 28 July 2005 Article 6 IV Official Journal of 29 July 2005, in force on 1st January 2006)
For application of articles L. 222-2 and L. 222-4, reference to the département commissions competent in matters of the environment and health and technological risks is replaced by reference to the Hygiene Council of Mayotte.
Notwithstanding the provisions of the second paragraph of article L. 222-2, the air quality plan in Mayotte is subject to a ruling of the State representative.
Article L652-7 (Inserted by Order no. 2005-869 of 28 July 2005 Article 6 IV Official Journal of 29 July 2005, in force on 1st January 2006)
Articles L. 229-5 to L. 229-19 only apply to Mayotte as of 1st January 2012.
Article L652-8 (Inserted by Order no. 2005-869 of 28 July 2005 Article 6 III Official Journal of 29 July 2005, in force on 1st January 2006)
Sworn agents commissioned by the government representative are authorised to investigate infringements of the provisions of Book II of the present code when they apply to Mayotte.
CHAPTER III Natural spaces Articles L653-1 to
L653-3
Article L653-1 (Act no. 2001-616 of 11 July 2001 Article 51 IV Official Journal of 13 July 2001) (Order no. 2004-178 of 20 February 2004 Article 6 IV Official Journal of 24 February 2004) (Order no. 2005-869 of 28 July 2005 Article 7 Official Journal of 29 July 2005, in force on 1st January 2006)
I. - Articles L. 321-11, L. 321-12 and L. 333-4 do not apply to Mayotte. II. - For application of Article L. 321-2 to Mayotte, the words "metropolitan" and "overseas départements" are
replaced by "of Mayotte". III. - For application of Article L. 341-20 to Mayotte, after the words "322-2 of the Code pénal", the words "modified
by article 724-1 of the same Code for its application to Mayotte" are inserted. IV. - For application of Article L. 341-22 to Mayotte, the words "legally classified before 2 May 1930 in accordance
with the provisions of the law of 21 April 1906 organising the protection of sites and natural monuments of an artistic nature" are replaced by "legally protected before the promulgation of Law no. 2001-616 of 11 July 2001 relating to Mayotte, in accordance with the provisions of Law no.56-1106 of 3 November 1956 the purpose of which, in the territories covered by the Ministry for French Overseas Territories, is the protection of natural monuments, sites and monuments of a historic, scientific, artistic or picturesque nature, the classification of historic, scientific or ethnographic objects and the regulation of archaeological digs".
Article L653-2 (Order no. 2005-869 of 28 July 2005 Article 8 I Official Journal of 29 July 2005, in force on 1st January 2006)
In addition to the agents mentioned in these provisions, agents from the territorial water and forestry services commissioned by the government representative are authorised to investigate infringements of the provisions of Book III of the present code committed within the territorial authority.
Official reports have probative force unless proven otherwise. They are passed on within the period of time provided for in Book III.
Article L653-3 (Order no. 2005-869 of 28 July 2005 Article 8 II Official Journal of 29 July 2005, in force on 1st January 2006)
The provisions of II and III of article L. 332-2 do not apply to Mayotte. The references to a decision of the President of the regional council in article L. 332-6, to a special authorisation of
the regional council in article L. 332-9, or to a deliberation of the regional council in article L. 332-10 are not applicable to Mayotte.
CHAPTER IV Flora and fauna Articles L654-1 to
L654-9
Article L654-1 (Act no. 2001-616 of 11 July 2001 Article 51 V Official Journal of 13 July 2001) (Order no. 2005-869 of 28 July 2005 Article 9 I Official Journal of 29 July 2005, in force on 1st January 2006)
Articles L. 414-1 to L. 414-7 and L. 436-1 to L. 436-3 do not apply to Mayotte.
Article L654-2 (Act no. 2001-616 of 11 July 2001 Article 51 VI Official Journal of 13 July 2001)
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ENVIRONMENTAL CODE Given the distinctive characteristics of the local situation with regard to the interests mentioned in Article L. 110-1,
the State representative may complete the list provided for in Article L. 412-1.
Article L654-3 (Act no. 2001-616 of 11 July 2001 Article 51 VI Official Journal of 13 July 2001) (Order no. 2005-869 of 28 July 2005 Article 9 II Official Journal of 29 July 2005, in force on 1st January 2006)
The State representative makes the rulings provided for in Articles L. 424-1 and L. 424-4.
Article L654-4 The date of 30 June 1984, which appears in Article L. 431-7, is replaced by the date 01 January 1994.
Article L654-5 (Act no. 2001-616 of 11 July 2001 Article 51 VI Official Journal of 13 July 2001)
The lists provided by Articles L. 432-6 and L. 432-10 are set by a ruling by the State representative.
Article L654-6 (Act no. 2001-616 of 11 July 2001 Article 51 VII Official Journal of 13 July 2001) (Order no. 2005-869 of 28 July 2005 Article 9 III Official Journal of 29 July 2005, in force on 1st January 2006)
Any person who partakes in a fishing activity must prove that he or she is a member either of an approved fishing and fish-farming association or of an approved amateur association for fishing with equipment and nets in the public waters, or of an approved professional fishing association.
Article L654-7 (Act no. 2001-616 of 11 July 2001 Article 51 VI Official Journal of 13 July 2001)
For application of Articles L. 436-5, L. 436-11 and L. 436-12, the conditions for exercising the right to fish are set by a ruling by the State representative.
Article L654-8 (Act no. 2001-616 of 11 July 2001 Article 51 VI Official Journal of 13 July 2001)
For application of Article L. 437-11, income from the sale of confiscated fish belongs to the département authority of Mayotte.
Article L654-9 (Act no. 2001-616 of 11 July 2001 Article 51 VI, VII Official Journal of 13 July 2001) (Order no. 2005-869 of 28 July 2005 Article 9 IV Official Journal of 29 July 2005, in force on 1st January 2006)
In addition to the agents mentioned in these provisions, agents from the agriculture and forestry services commissioned by the State representative are authorised to investigate infringements of the provisions of Book IV of the present code committed within the territorial authority of Mayotte.
Official reports have probative force unless proven otherwise. They are passed on within the period of time provided for in Book IV.
CHAPTER V Prevention of pollution, risks and nuisances Articles L655-1 to
L655-8
Article L655-1 (Act no. 2001-616 of 11 July 2001 Article 51 VIII Official Journal of 13 July 2001) (Act no. 2003-591 of 02 July 2003 Article 31 III 28° Official Journal of 3 July 2003) (Order no. 2005-869 of 28 July 2005 Article 10 I Official Journal of 29 July 2005, in force on 1st January 2006)
Articles L. 541-32, L. 541-36, L. 565-1 and L. 562-6 do not apply to Mayotte.
Article L655-2 For application to Mayotte, the third paragraph of Article L. 515-9 reads as follows: "The project defining the easements and boundary is made available to the public and submitted for the opinion of
the municipal councils of the communes within the boundary."
Article L655-3 (Order no. 2005-869 of 28 July 2005 Article 10 II Official Journal of 29 July 2005, in force on 1st January 2006) (Order no. 2005-869 of 28 July 2005 Article 10 III Official Journal of 29 July 2005, in force on 1st January 2006)
For application to Mayotte, the third paragraph of Article L. 515-11 reads as follows: "The prejudice is estimated at the date of the decision in first instance. However, only the possible use of the
property and the property rights one year before public release, as provided by Article L. 515-9, will be taken into consideration."
Articles L. 515-15 to L. 515-26 only apply to Mayotte as of 1st January 2010.
Article L655-4 (Order no. 2005-869 of 28 July 2005 Article 10 III Official Journal of 29 July 2005, in force on 1st January 2006) (Order no. 2005-869 of 28 July 2005 Article 11 I Official Journal of 29 July 2005, in force on 1st January 2006)
For application to Mayotte of Article L. 541-10-1, the words "1st January 2005" are replaced by the words "1st January 2010".
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ENVIRONMENTAL CODE Article L655-5 (Order no. 2005-869 of 28 July 2005 Article 10 II Official Journal of 29 July 2005, in force on 1st January 2006) (Order no. 2005-869 of 28 July 2005 Article 11 I Official Journal of 29 July 2005, in force on 1st January 2006)
For application to Mayotte of Article L. 541-13, paragraphs V, VI and VII are replaced by the following paragraphs: V. - The draft plan is drawn up at the initiative and under the responsibility of the State. However, this competence
may be transferred to the Conseil Général at its request. VI. - The draft plan is submitted for opinion to the Conseil Général and to a commission composed of
representatives of the local authorities, the State and the public bodies concerned, professional organisations contributing to the production and disposal of the waste, and the approved environmental protection associations.
VII. - The draft plan, where necessary modified to take into account the opinions given in application of VI, is made available to the public for two months, then approved by the State representative, and published.
Article L655-6 (Order no. 2005-869 of 28 July 2005 Article 10 II Official Journal of 29 July 2005, in force on 1st January 2006) (Order no. 2005-869 of 28 July 2005 Article 11 I Official Journal of 29 July 2005, in force on 1st January 2006)
For application to Mayotte of Article L. 541-14, paragraphs V to VIII are replaced by the following paragraphs: V. - The draft plan is drawn up on the initiative and under the responsibility of the State. However, this competence
is transferred at its request to the Conseil Général. VI. - It is drawn up following consultation with a consultative committee composed of representatives of the
communes and their groups, the local authority, the State, interested public bodies, professionals concerned and approved environmental protection associations.
VII. - The draft project is submitted for opinion to the Conseil Général and to the hygiene council. VIII. - The draft plan, where necessary modified to take into account the opinions given in application of VII, is
submitted for a public enquiry, then approved by the State representative.
Article L655-7 (Order no. 2005-869 of 28 July 2005 Article 10 IV Official Journal of 29 July 2005, in force on 1st January 2006) (Order no. 2005-869 of 28 July 2005 Article 11 I Official Journal of 29 July 2005, in force on 1st January 2006)
For application to Mayotte of Article L. 551-2, the words "on the date of publication of Act no. 2003-699 of 30 July 2003 relating to the prevention of technological and natural risks and the repair of damages" are replaced by "on the date of publication of Order no. 2005-869 of 28 July 2005 relating to the adaptation of Environmental Law to Mayotte" and the words "within three years at the latest following the entry into force of the said law" are replaced by "before 31 December 2008".
Notwithstanding the provisions of the last paragraph of the same article, its modes of application, notably the categories of structure concerned, are set by a ruling of the State representative in Mayotte.
Article L655-8 (Order no. 2005-869 of 28 July 2005 Article 10 IV Official Journal of 29 July 2005, in force on 1st January 2006)
Sworn agents commissioned by the government representative are authorised to investigate infringements of the provisions of Book V of the present code when they apply to Mayotte.
CHAPTER VI Antarctic Article L656-1
Article L656-1 (Inserted by Act no. 2003-347 of 15 April 2003 Article 2 Official Journal of 16 April 2003)
Articles L. 711-1 to L. 713-9 apply to Mayotte.
BOOK VII Protection of the environment in the Antarctic Articles L711-1 to
L713-9 SINGLE TITLE Implementation of the protocol on environmental protection to the Antarctic Treaty
signed in Madrid on 4 October 1991 Articles L711-1 to L713-9
CHAPTER I Common provisions Articles L711-1 to
L711-4
Article L711-1 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
For application of the provisions of the present Title, the Antarctic is understood to be the zone defined in Article 6 of the Antarctic Treaty signed in Washington on 01 December 1959, i.e. the area located south of the 60° South latitude including all ice shelves.
Article L711-2 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
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ENVIRONMENTAL CODE I. - In accordance with the modes of implementation provided for under the present Title, the organisation of and
engagement in activities in the Antarctic take into consideration the protection of the environment, and dependent and associated ecosystems, and the preservation of the Antarctic as a natural reserve for the world, devoted to peace, science and scientific research.
II. - The aforementioned activities are subject to either a preliminary declaration, or authorisation under the conditions defined in Chapter II, with the exception of:
- Fishing activities governed by the Convention for the Conservation of Antarctic Marine Living Resources, signed in Canberra on 20 May 1980;
- Exercising the right to freedom of navigation and freedom to overfly high seas in accordance with international law; - Activities authorised by another Party to the Madrid protocol; - Activities conducted by vessels and aircraft belonging to or used by the French State within the framework of their
police or national defence missions.
Article L711-3 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
The following are subject to the provisions of the present Title: a) Any person, whatever his or her nationality, who engages in an activity in the district of Adélie Land, which comes
under the authority of the French Southern and Antarctic Territories, and any vessel or aircraft used for this purpose; b) Any individual with French nationality and legal entities created in accordance with French law that organises or
participates in activities in other parts of the Antarctic, in addition to vessels sailing under the French flag and aircraft registered in France used for this purpose;
c) Any person, whatever his or her nationality, who organises on or from French territory, or participates in, activities to be carried out in any part whatsoever of the Antarctic.
Article L711-4 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
None of the provisions of the present Title shall undermine the immunity provided by international law for warships and other vessels belonging to foreign States used for non-commercial purposes.
CHAPTER II Declaration and authorisation Articles L712-1 to
L712-5
Article L712-1 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
I. - Activities having a minor or transitory impact on the environment in the Antarctic, as stipulated in Article 8 of the Madrid Protocol, are subject to authorisation.
II. - All other activities are subject to a preliminary declaration.
Article L712-2 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
The issuing of an authorisation is determined by a prior assessment of the impact of the activity on the environment. Subject to Article L. 713-4, authorisation is only granted if the assessment shows that the impact of the activity is
compatible with the preservation of the Antarctic environment.
Article L712-3 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
Where necessary, authorisation may be accompanied by recommendations, especially concerning: - The geographical areas involved; - The period during which the activities shall be taking place; - The equipment used, particularly the conditions of use of radioactive equipment for scientific purposes; - The equipment and preparation plans for emergency situations; - The waste management method.
Article L712-4 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
Decommissioning of an authorised installation is itself subject to authorisation.
Article L712-5 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
A Conseil d'Etat decree defines the modes of application of the present Chapter. It determines the competent authorities for issuing authorisations, the activities stipulated in section II of Article L. 712-1, the content and modes of implementation for the preliminary impact evaluation, the procedure applicable to declarations and authorisation requests, and the regulations applicable to existing installations.
CHAPTER III Inspections and sanctions Articles L713-1 to
L713-9
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ENVIRONMENTAL CODE SECTION I Administrative inspections and sanctions Articles L713-1 to
L713-4
Article L713-1 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
A declared activity may be suspended, interrupted or subjected to special limitations should it appear that it causes damage to the environment of a more serious or different nature to that identified at the time of its declaration. Except in cases of emergency, the author of the declaration is obliged to present his or her observations beforehand.
Article L713-2 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
An authorisation may be suspended, repealed or modified should it appear that the authorised activity causes damage to the environment of a more serious or different nature to that identified at the time of issue. Except in cases of emergency, the holder of the authorisation is obliged to present his or her observations beforehand.
Article L713-3 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
The administrative authority may direct a person responsible for an activity, declared or authorised in accordance with Chapter II, to bring the conditions of execution thereof into compliance with the terms of the declaration or authorisation.
If, on expiry of the time limit set by formal notice, the person has not complied with this injunction, the administrative authority may enforce the provisions laid down in Articles L. 713-1 and L. 713-2.
Article L713-4 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
The administrative authority may issue a warning to any person identified as conducting activities that are incompatible with the Madrid Protocol and the present Title. Prior to this, such a person is invited to present his or her observations. Once a warning has been issued, all authorisations shall be refused on these grounds for a period of five years.
SECTION II Criminal sanctions Articles L713-5 to
L713-9
Article L713-5 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
The following action is taken against infringements of the present Title committed by persons mentioned in Article L. 711-3:
1° The organisation of or participation in an activity which has not been granted authorisation as provided by section I of Article L. 712-1, or the disregard of the conditions of the said authorisation, is punishable by one year of imprisonment and a fine of 75 000 euros;
2° The following are punishable by two years of imprisonment and a fine of 30 000 euros: - The act of leading a mineral resource prospecting or extraction activity in the Antarctic, other than an activity
conducted for scientific research purposes within the limits of authorisation issued to this effect; - The commercialisation of materials resulting from an illicit mineral resource prospecting or extraction activity in the
Antarctic; 3° The introduction or disposal of radioactive waste in the Antarctic is punishable by two years of imprisonment and
a fine of 75 000 euros; 4° Under the conditions provided by Article 121-2 of the Code pénal, any legal entity may be declared responsible
for the offences defined in the present Title. They incur a fine in accordance with the modes of implementation stipulated in Article 131-38 of the aforementioned code;
5° Equipment which has been used or was intended for committing an offence, or the materials which are the product thereof, may be confiscated.
Article L713-6 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
The acts mentioned in 1° of Article L. 713-5 are not subject to criminal sanctions in the event of an emergency involving the safety of human life, vessels, aircraft or equipment and facilities of high value, or the protection of the environment, which make a preliminary authorisation request in accordance with the present Title impossible.
Article L713-7 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
In addition to judicial police officers acting in compliance with the provisions of the Code de procédure pénale, the following are authorised to detect and investigate infringements of the present Title and enactments for its application:
- Customs officers; - Agents authorised to record infringements of legislation pertaining to nature reserves;
Updated 04/10/2006 - Page 200/201
ENVIRONMENTAL CODE - Administrators of Maritime Affairs, Inspectors of Maritime Affairs, Maritime Affairs Technical and Administrative
Officers, seafarers unions, ship Commanders, First Officers and First Officers of State vessels, and Commanders of State aircraft in charge of sea surveillance.
Article L713-8 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
Without prejudice to the rules of jurisdiction defined in Article 382 of the Code de procédure pénale, and the provisions of Article L. 935-1 of the Code de l'organisation judiciaire, the Paris Tribunal de Grande Instance shall be competent to judge infringements of the provisions of the present Title, and the enactments for its application, observed in the Antarctic, outside Adélie Land, which comes under the authority of the French Southern and Antarctic Territories.
Article L713-9 (Inserted by Act no. 2003-347 of 15 April 2003 Article 1 Official Journal of 16 April 2003)
A Conseil d'Etat decree determines the methods of application of the present Chapter.
Updated 04/10/2006 - Page 201/201
CÓDIGO DE MEDIO AMBIENTE
CÓDIGO DE MEDIO AMBIENTE
Con el concurso del Prof. Antonio ORTIZ-ARCE de la FUENTE, Catedrático de la Facultad de Derecho de la Universidad Complutense de Madrid.
LIBRO I Disposiciones comunes Artículos L110-1 a
L151-2 Título I Principios generales Artículos L110-1 a
L110-2
Artículo L110-1 (Ley nº 2002-276 de 27 de febrero de 2002 art. 132 Diario Oficial de 28 de febrero de 2002)
I. - Los espacios, recursos y medios naturales, los lugares y paisajes, la calidad del aire, las especies animales y vegetales, la diversidad y los equilibrios biológicos a los que contribuyen, forman parte del patrimonio común de la Nación.
II. - Su protección, valorización, restauración, rehabilitación y gestión son de interés general y contribuyen al objetivo de desarrollo sostenible, el cual se propone garantizar las necesidades de desarrollo y salud de las generaciones presentes sin comprometer la capacidad de las generaciones futuras para satisfacer las suyas. Dentro del marco de las leyes que establecen su alcance, su puesta en práctica se inspirará en los siguientes principios:
1º El principio de precaución, según el cual la ausencia de certezas, habida cuenta de los conocimientos científicos y técnicos del momento, no debe retrasar la adopción de medidas efectivas y adecuadas de cara a prevenir el riesgo de daños graves e irreversibles en el medio ambiente, con un coste económico aceptable;
2º El principio de acción de prevención y de corrección de los daños al medio ambiente, preferentemente en la fuente misma, utilizando las mejores técnicas disponibles con un coste económico aceptable;
3º El principio de quien contamina paga, según el cual los gastos resultantes de las medidas de prevención, de reducción de la contaminación y de lucha contra la misma deben ser sufragados por el contaminador;
4º El principio de participación, según el cual todas las personas tienen acceso a la información medioambiental, incluida aquella relativa a las sustancias y actividades peligrosas, y según el cual se asocia a los ciudadanos al proceso de elaboración de los proyectos que tienen una incidencia importante en el medio ambiente o la ordenación del territorio.
Artículo L110-2 Las leyes y demás disposiciones regularán el derecho de cada persona a un medio ambiente saludable y
contribuirán a garantizar un equilibrio armonioso entre las zonas urbanas y las zonas rurales. Será el deber de cada persona velar por la conservación y contribuir a la protección del medio ambiente. Las entidades públicas y privadas tendrán que someterse a las mismas exigencias en el ejercicio de todas sus
actividades.
Título II Información y participación de los ciudadanos Artículos L121-1 a
L126-1
Capítulo I Participación pública en la elaboración de los proyectos de ordenación o de
equipamiento que tienen una incidencia importante en el medio ambiente o la ordenación del territorio
Artículos L121-1 a L121-15
Sección I Misiones de la Comisión Nacional para el Debate Público : Ámbito de
aplicación y objeto del debate público Artículos L121-1 a L121-2
Artículo L121-1 (Ley nº 2002-276 de 27 de febrero de 2002 art. 134 Diario Oficial de 28 de febrero de 2002)
La Comisión Nacional para el Debate Público, autoridad administrativa independiente, se encargará de garantizar el derecho de participación de los ciudadanos en el proceso de elaboración de los proyectos de ordenación o equipamiento de interés nacional para el Estado, promovidos por las entidades territoriales, las instituciones públicas y las personas privadas, y correspondientes a las categorías de actuaciones cuya lista se establecerá por Decreto adoptado en Conseil d'Etat, desde el momento en que los mismos presenten importantes retos socioeconómicos o tengan impactos significativos sobre el medio ambiente o la ordenación del territorio.
La participación pública podrá revestir la forma de un debate público. Éste se centrará en la oportunidad, los objetivos y las características principales del proyecto.
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CÓDIGO DE MEDIO AMBIENTE La participación pública se hará efectiva durante toda la fase de elaboración de un proyecto, desde el inicio de los
estudios preliminares hasta la finalización del periodo de consulta pública realizada en aplicación de lo dispuesto en el capítulo III del título II del libro I del presente Código o del capítulo I del título I del Código de la Expropiación por Causa de Utilidad Pública.
Además, la Comisión Nacional para el Debate Público velará por que se garanticen buenas condiciones de información pública durante la fase de realización de los proyectos que se le han sometido hasta la finalización de los equipamientos y obras.
Previa solicitud, asesorará a las autoridades competentes y a toda entidad adjudicadora acerca de cualquier cuestión relacionada con el diálogo público a lo largo de la elaboración de un proyecto.
Asimismo, la Comisión Nacional para el Debate Público tendrá como misión emitir todos los dictámenes y recomendaciones de carácter general o metodológico susceptibles de favorecer y desarrollar el proceso de diálogo público.
La Comisión Nacional para el Debate Público y las comisiones especiales no se pronunciarán sobre el fondo de los proyectos que les fueran sometidos.
Artículo L121-2 (Ley nº 2002-276 de 27 de febrero de 2002 art. 134 Diario Oficial de 28 de febrero de 2002)
Lo dispuesto en el presente capítulo no será de aplicación a los documentos de urbanismo ni a las actuaciones de ordenación previstas por el libro III del Código de Urbanismo. No obstante, podrán corresponderle determinados proyectos de inversión cuya lista será establecida por decreto adoptado en Conseil d'Etat.
Cuando el debate público fuera organizado en las condiciones previstas en el presente capítulo, no serán aplicables las disposiciones previstas en el artículo L.300-2 del Código de Urbanismo.
Sección II Composición y funcionamiento de la Comisión Nacional para el Debate Público Artículos L121-3 a
L121-7
Artículo L121-3 (Ley nº 2002-276 de 27 de febrero de 2002 art. 134 Diario Oficial de 28 de febrero de 2002)
La Comisión Nacional para el Debate Público estará formada por veinte miembros nombrados por un periodo de cinco años o por el periodo de duración de su mandato. Junto al Presidente y dos Vicepresidentes, la integrarán:
1º Un diputado y un senador, nombrados respectivamente por el Presidente de la Asamblea Nacional y por el Presidente del Senado;
2º Seis representantes locales nombrados por decreto a propuesta de las asociaciones representativas de los representantes correspondientes;
3º Un miembro del Conseil d'Etat, elegido por la Asamblea General del Conseil d'Etat; 4º Un miembro de la Cour de cassation, elegido por la Asamblea General de la Cour de cassation; 5º Un miembro de la Cour des comptes, elegido por la Asamblea General de la Cour des comptes; 6º Un miembro del cuerpo de miembros de los tribunales administrativos y de las Cours Administratives d'appel,
nombrado por decreto a propuesta del Consejo Superior de los tribunales administrativos y de las Cours Administratives d'appel;
7º Dos representantes de asociaciones de protección del medio ambiente autorizadas en virtud de lo dispuesto en el artículo L.141-1 y que ejercieran su actividad en el conjunto del territorio nacional, nombrados por Orden del Primer Ministro a propuesta del Ministro de Medio Ambiente;
8º Dos representantes de los consumidores y de los usuarios, nombrados respectivamente por Orden del Primer Ministro a propuesta de los Ministros de Economía y Transporte;
9º Dos personalidades cualificadas, una de las cuales haya ejercido las funciones de comisario de investigación, nombradas respectivamente por Orden del Primer Ministro a propuesta de los Ministros de Industria y de Equipamiento.
El Presidente y los Vicepresidentes serán nombrados por decreto. El mandato de los miembros será renovable una vez. El Presidente y los Vicepresidentes ejercerán sus funciones con dedicación exclusiva y serán remunerados. Las funciones ejercidas por los demás miembros darán lugar a una indemnización.
Artículo L121-4 (Ley nº 2002-276 de 27 de febrero de 2002 art. 134 Diario Oficial de 28 de febrero de 2002)
La Comisión podrá beneficiarse de la puesta a su disposición de funcionarios en activo. Podrá incorporar agentes contratados para cubrir las necesidades de su funcionamiento.
Artículo L121-5 (Ley nº 2002-276 de 27 de febrero de 2002 art. 134 Diario Oficial de 28 de febrero de 2002)
Los miembros de la Comisión Nacional y de las comisiones especiales que tuvieran un interés personal o derivado de sus funciones no podrán participar en un debate o en un procedimiento de concertación relacionado con dicha actuación.
Artículo L121-6 (Introducido por la Ley nº 2002-276 de 27 de febrero de 2002 art. 134 Diario Oficial de 28 de febrero de 2002)
Los créditos necesarios para el funcionamiento de la Comisión Nacional para el Debate Público serán consignados
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CÓDIGO DE MEDIO AMBIENTE en el presupuesto general del Estado a propuesta del Primer Ministro. El Presidente de la Comisión será el Ordenador de los pagos. Los servicios estarán bajo su autoridad.
Lo dispuesto en la Ley de 10 de agosto de 1922, relativa a la organización del control de los gastos realizados, no será de aplicación a los gastos de la Comisión.
Artículo L121-7 (Introducido por la Ley nº 2002-276 de 27 de febrero de 2002 art. 134 Diario Oficial de 28 de febrero de 2002)
La Comisión Nacional para el Debate Público presentará cada año un informe de sus actividades. Este informe será remitido tanto al Gobierno como al Parlamento y será hecho público.
Sección III Organización del debate público Artículos L121-8 a
L121-15
Artículo L121-8 (Introducido por la Ley nº 2002-276 de 27 de febrero de 2002 art. 134 Diario Oficial de 28 de febrero de 2002)
I. - La Comisión Nacional para el Debate Público conocerá de todos los proyectos de ordenación o de equipamiento que por su naturaleza, sus características técnicas o su coste previsible, tal como puede ser valorado durante la fase de elaboración, respondan a determinados criterios o sobrepasen ciertos valores límites establecidos por decreto adoptado en Conseil d'Etat.
La entidad adjudicadora o el ente público responsable del proyecto dirigirá un expediente a la Comisión exponiendo los objetivos y principales características del proyecto, así como el alcance socioeconómico, el coste estimado y los impactos significativos del proyecto sobre el medio ambiente o la ordenación del territorio.
II. - Además, los proyectos pertenecientes a las categorías definidas según lo dispuesto en el punto I, pero cuyo coste previsible fuera inferior al límite determinado según lo dispuesto en el punto I y respondieran a determinados criterios técnicos o superasen los límites determinados por decreto adoptado en Conseil d'Etat para cada clase de proyecto, serán hechos públicos por la entidad adjudicadora o por el ente público responsable del proyecto, quienes publicarán sus objetivos y características esenciales.
En este caso, la entidad adjudicadora, el ente público responsable del proyecto o un mínimo de diez parlamentarios podrán recurrir a la Comisión. También podrán recurrir a la misma un Consejo Regional, un Consejo General, un Consejo Municipal o una entidad pública de cooperación intermunicipal competente en materia de ordenación del territorio, que estuvieran afectados territorialmente, o una de las asociaciones autorizadas de protección del medio ambiente mencionadas en el artículo L.141-1 que ejerciera su actividad en el conjunto del territorio nacionaL.El plazo para recurrir a la Comisión será de dos meses a partir del momento en que dichos proyectos hubieran sido presentados públicamente por la entidad adjudicadora.
La entidad adjudicadora remitirá a la Comisión Nacional para el Debate Público un expediente elaborado de conformidad con lo establecido en el segundo párrafo del punto I.
Artículo L121-9 (Introducido por la Ley nº 2002-276 de 27 de febrero de 2002 art. 134 Diario Oficial de 28 de febrero de 2002)
Cuando se someta un proyecto a la Comisión Nacional para el Debate Público en aplicación del artículo L.121-8, ésta determinará las condiciones de participación pública en el proceso de decisión conforme a las siguientes condiciones:
I. - Para cada proyecto, la Comisión valorará si debe procederse al debate público, dependiendo del interés nacional del proyecto, de su incidencia territorial, de los desafíos socioeconómicos que conlleva y de sus impactos sobre el medio ambiente o la ordenación del territorio.
Si la Comisión estimara necesario un debate público podrá, bien organizarlo ella misma, en cuyo caso constituirá una comisión ad hoc encargada de hacerlo, bien encomendar su organización a la entidad adjudicadora o al ente público responsable del proyecto. En este caso, la Comisión definirá las condiciones de organización del debate y velará por su buen desarrollo.
Cuando la Comisión no estimara necesario un debate público, podrá recomendar a la entidad adjudicadora o al ente público responsable del proyecto que organice una mesa negociadora en las condiciones por ella establecidas.
II. - La Comisión Nacional para el Debate Público se pronunciará en el plazo de dos meses sobre el curso a dar a los proyectos que se le hubieran sometido en virtud de lo previsto en los puntos I y II del artículo L.121-8.
Se pronunciará sobre las solicitudes de debate que le fueran presentadas en virtud del artículo L.121-8 mediante una decisión motivada.
A falta de decisión expresa a la finalización de este plazo, se considerará que la Comisión ha renunciado a organizar el debate público o a encargar la organización de dicho debate a la entidad adjudicadora o al ente público responsable del proyecto.
III. - Los gastos relativos a la organización material de un debate público correrán a cargo de la entidad adjudicadora o del ente público responsable del proyecto. Sin embargo, el coste de los dictámenes complementarios de expertos correrá a cargo de la Comisión Nacional para el Debate Público.
Artículo L121-10 (Introducido por la Ley nº 2002-276 de 27 de febrero de 2002 art. 134 Diario Oficial de 28 de febrero de 2002)
El Ministro de Medio Ambiente, conjuntamente con el Ministro interesado, podrá recurrir a la Comisión Nacional para el Debate Público con el objeto de organizar un debate público sobre determinadas opciones generales en el
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CÓDIGO DE MEDIO AMBIENTE ámbito del medio ambiente o de ordenación del territorio.
Artículo L121-11 (Introducido por la Ley nº 2002-276 de 27 de febrero de 2002 art. 134 Diario Oficial de 28 de febrero de 2002)
La Comisión Nacional para el Debate Público establecerá y publicará el calendario de desarrollo del debate público, cuya duración no podrá ser superior a cuatro meses, pudiéndose prolongar dos meses más mediante decisión motivada de la Comisión Nacional para el Debate Público.
La Comisión Nacional para el Debate Público podrá solicitar a la entidad adjudicadora o al ente público responsable que complete el expediente que se prevé someter a debate público.
En este caso, el plazo previsto en el párrafo anterior no empezará a contar hasta el momento en que la Comisión Nacional para el Debate Público haya recibido el expediente completo.
El Presidente de la Comisión Nacional para el Debate Público publicará un informe sobre el debate y presentará sus conclusiones en el plazo de dos meses a partir de la fecha de finalización del debate público.
Artículo L121-12 (Introducido por la Ley nº 2002-276 de 27 de febrero de 2002 art. 134 Diario Oficial de 28 de febrero de 2002)
En lo concerniente a los proyectos considerados en el artículo L.121-8, solamente podrá decidirse el inicio de la consulta pública prevista en el artículo L.123-1 después de la fecha a partir de la cual ya no se pudiera organizar un debate público, o bien después de la fecha de publicación del balance o a la expiración del plazo concedido al Presidente de la Comisión Nacional para el Debate Público para proceder a su publicación y, como máximo, dentro del plazo de los cinco años siguientes a tales fechas. Transcurrido este plazo, la Comisión sólo podrá decidir reanudar el procedimiento de diálogo público si las circunstancias de hecho o de derecho que justificaron el proyecto hubieran sufrido modificaciones sustanciales.
Artículo L121-13 (Introducido por la Ley nº 2002-276 de 27 de febrero de 2002 art. 134 Diario Oficial de 28 de febrero de 2002)
Cuando se hubiera organizado un debate público acerca de un proyecto, la entidad adjudicadora o el ente público responsable del proyecto tomarán una decisión en el plazo de tres meses a partir de la publicación de las conclusiones del debate público, por medio de un documento que hará público, sobre el fundamento y las condiciones de realización del proyecto. Deberá precisar, en su caso, las principales modificaciones realizadas al proyecto sometido a debate público. Este documento será remitido a la Comisión Nacional para el Debate Público.
Cuando la entidad adjudicadora o el ente público responsable del proyecto fuera una entidad territorial, dicho documento dará lugar a una deliberación.
Artículo L121-14 (Introducido por la Ley nº 2002-276 de 27 de febrero de 2002 art. 134 Diario Oficial de 28 de febrero de 2002)
No podrá alegarse irregularidad alguna respecto de las disposiciones del presente capítulo cuando se hubieran convertido en definitivos, bien el documento a través del cual la Comisión Nacional para el Debate Público hubiera renunciado a organizar un debate público, bien el documento mencionado en el artículo L.121-13.
Artículo L121-15 (Introducido por la Ley nº 2002-276 de 27 de febrero de 2002 art. 134 Diario Oficial de 28 de febrero de 2002)
Un decreto adoptado en Conseil d'Etat precisará las condiciones de aplicación del presente capítulo
Capítulo II Evaluación ambiental Artículos L122-1 a
L122-11
Sección I Etudes d'impact des travaux et projets d'aménagement Artículos L122-1 a
L122-3
Artículo L122-1 (Ley nº 2002-276 de 27 de febrero de 2002 art. 147 I Diario Oficial de 28 de febrero de 2002) (Disposición nº 2004-489 de 3 de junio de 2004 art. 1 I, II Diario Oficial de 5 de junio de 2004) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 1 Diario Oficial de 27 de octubre de 2005)
Las obras y proyectos de ordenación promovidos por una entidad pública o que requieran alguna autorización o decisión para su aprobación, así como los documentos urbanísticos, deberán integrar las preocupaciones medioambientales.
Los estudios previos a la realización de obras o construcciones susceptibles de dañar el medio natural debido a la importancia de sus dimensiones o a su repercusión sobre el mismo, deberán incluir un estudio de impacto ambiental que permita evaluar sus consecuencias. La autoridad encargada de autorizar o aprobar las construcciones u obras deberá someter dicho estudio de impacto a la autoridad administrativa estatal competente en materia de medio ambiente.
Sin perjuicio de lo dispuesto en los artículos L. 11-1-1 del Código de Expropiación por Causa de Utilidad Pública y L. 126-1 del presente Código sobre los motivos expuestos en las declaraciones de utilidad pública y en las declaraciones de proyecto, cuando se tome una decisión de concesión o denegación de autorización respecto al proyecto sometido al estudio de impacto ambiental, la autoridad competente informará públicamente de dicha decisión
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CÓDIGO DE MEDIO AMBIENTE y, sin perjuicio del secreto de defensa nacional, pondrá a disposición pública la siguiente información:
- el contenido de la decisión y, en su caso, las condiciones de aplicación que la acompañaran; - los motivos en los que se sustenta la decisión;
- los lugares donde puede consultarse el estudio de impacto así como, en su caso, las principales medidas destinadas a evitar, reducir y compensar, cuando fuera posible, los principales efectos negativos del proyecto.
Artículo L122-2 (Disposición nº 2000-914 de 18 de septiembre de 2000 art. 12 1° Diario Oficial de 21 de septiembre de 2000 con entrada en vigor el 1 de enero de 2001) (Disposición nº 2004-489 de 3 de junio de 2004 art. 1 I, II Diario Oficial de 5 de junio de 2004)
Cuando se presentara un recurso ante la jurisdicción administrativa contra una autorización o una decisión de aprobación de un proyecto citado en el segundo párrafo del artículo L.122-1, y el mismo estuviera fundamentado en la ausencia de estudio de impacto ambiental, el juez de procedimientos sumarios que conociera de la demanda de suspensión de la decisión recurrida, la admitirá a trámite a partir del momento en que se hubiera constatado dicha ausencia.
Artículo L122-3 (Ley nº 2002-276 de 27 de febrero de 2002 art. 147 II Diario Oficial de 28 de febrero de 2002) (Disposición nº 2004-489 de 3 de junio de 2004 art. 1 I, II Diario Oficial de 5 de junio de 2004) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 1 Diario Oficial de 27 de octubre de 2005)
I. - Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente capítulo. II. - Dicho decreto determinará, principalmente: 1º Las condiciones en las que se tendrán en consideración las preocupaciones medioambientales en los
procedimientos reglamentarios existentes; 2° El contenido del estudio de impacto ambiental, el cual tendrá que incluir como mínimo: un análisis de la situación
inicial del lugar y de su entorno, el estudio de las transformaciones que el proyecto produciría, el estudio de sus efectos sobre la salud y las medidas previstas para eliminar, reducir y compensar, cuando fuera posible, las consecuencias perjudiciales para el medio ambiente y la salud. Además, para las infraestructuras de transporte, el estudio de impacto ambiental incluirá un análisis de los costes colectivos de la contaminación y los daños, de las ventajas derivadas para la comunidad, así como una evaluación del consumo energético resultante de la fase de explotación del proyecto, teniendo especialmente en cuenta los desplazamientos que el proyecto conlleve o permita evitar;
3º Las condiciones en las que se harán públicos el estudio de impacto ambiental y las principales medidas destinadas a evitar, reducir y compensar, cuando fuera posible, los principales efectos negativos del proyecto;
4º La lista limitativa de las obras que, debido a su escasa repercusión medioambiental, no estén sujetas al procedimiento de estudio de impacto ambiental;
5º Las condiciones en las que el Ministro de Medio Ambiente podrá conocer de oficio o a instancia de parte, cualquier estudio de impacto ambiental con objeto de emitir su dictamen.
III. - Dicho decreto designará la autoridad administrativa encargada de emitir su dictamen en aplicación del artículo L. 122-1 y determinará las condiciones de elaboración y de notificación pública del mismo.
Sección II Evaluación de determinados planes y documentos con notable incidencia en el
medio ambiente Artículos L122-4 a L122-11
Artículo L122-4 (Introducido por la Disposición nº 2004-489 de 3 de junio de 2004 art. 1 IV Diario Oficial de 5 de junio de 2004)
I. - Los planes, programas y demás documentos de planificación que figuren en un listado establecido por decreto adoptado en Conseil d'Etat y que, pese a no estar facultados para autorizar por sí mismos la realización de obras o de proyectos de ordenación territorial, fueran aplicables a la realización de tales obras o proyectos, deberán ser sometidos a una evaluación ambiental con arreglo a las condiciones previstas en la presente sección.
Deberán ser sometidos a dicha evaluación: 1º Los planes, programas y demás documentos de planificación adoptados por el Estado, las entidades territoriales
o sus agrupaciones y entidades públicas dependientes, que fueran relativos a la agricultura, la silvicultura, la pesca, la energía o industria, los transportes, la gestión de residuos, la gestión del agua, las telecomunicaciones, el turismo o la ordenación territorial, y que tuvieran por objetivo el establecimiento de normas y orientaciones a las que debieran ajustarse las obras y proyectos de ordenación territorial que estuvieran dentro del ámbito de aplicación del estudio de impacto en aplicación del artículo L. 122-1;
2º Los planes, programas y demás documentos de planificación adoptados por el Estado, las entidades territoriales o sus agrupaciones y entidades públicas dependientes, que no fueran los mencionados en el apartado 1° del presente artículo y que tuvieran por objetivo el establecimiento de normas y orientaciones a las que debieran ajustarse las obras y proyectos de ordenación territorial susceptibles de tener notable incidencia en el medio ambiente.
Se elaborará une relación de los documentos mencionados en el apartado 2° teniendo en cuenta la naturaleza de las obras y proyectos a los que los mismos se aplicaran y la sensibilidad de los medios en los que dichas obras y proyectos debieran realizarse.
II. - La evaluación ambiental de planes, programas y demás documentos de planificación citados en los artículos L. 121-10 del Código de Urbanismo y en los artículos L. 4429-9 y 4433-7 del Código General de Entidades Territoriales
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CÓDIGO DE MEDIO AMBIENTE se regirá por las disposiciones de los artículos L. 121-10 a L. 121-5 del Código de Urbanismo.
III. - Los proyectos de planes, programas y demás documentos de planificación que regularan la utilización de territorios de reducida superficie, no estarán sujetos a la evaluación contemplada en la presente sección cuando su aplicación no fuera susceptible de tener una notable incidencia en el medio ambiente debido, principalmente, a la sensibilidad del medio, al objeto del plan o al contenido del proyecto.
IV. - Los planes y documentos establecidos exclusivamente para fines de defensa nacional o de protección civil no estarán sujetos a la evaluación ambiental.
NOTA: Véase el Decreto nº 2005-613 publicado en el Diario Oficial de 29 de mayo de 2005.
Artículo L122-5 (Introducido por la Disposición nº 2004-489 de 3 de junio de 2004 art. 1 IV Diario Oficial de 5 de junio de 2004)
Exceptuando aquéllas que tuvieran un carácter menor, las modificaciones introducidas en los planes y documentos sujetos a lo dispuesto en el punto I del artículo L. 122-4 precisarán bien de una nueva evaluación ambiental, o bien de una actualización de la evaluación realizada en el momento de su elaboración.
Artículo L122-6 (Introducido por la Disposición nº 2004-489 de 3 de junio de 2004 art. 1 IV Diario Oficial de 5 de junio de 2004)
La evaluación ambiental dará lugar a la elaboración de un informe que identifique, describa y evalúe los efectos notables previsibles de la aplicación del plan o del documento en el medio ambiente. El informe presentará las medidas que se prevén para reducir y, en la medida de lo posible, compensar las incidencias negativas notables que pudiera ocasionar la aplicación del plan en el medio ambiente. Expondrá las demás soluciones contempladas y explicará las razones, especialmente las medioambientales, por las que se hubiera seleccionado el proyecto.
El informe ambiental contendrá la información que razonablemente pudiera exigirse, teniendo en cuenta los conocimientos y métodos de evaluación existentes en la fecha de elaboración o revisión del plan, sobre su contenido, grado de precisión y, en su caso, la existencia de otros documentos o planes relativos a la totalidad o parte de la misma zona geográfica o de oros procedimientos de evaluación ambiental previstos en una fecha ulterior.
Artículo L122-7 (Introducido por la Disposición nº 2004-489 de 3 de junio de 2004 art. 1 IV Diario Oficial de 5 de junio de 2004)
La entidad pública responsable de la elaboración de un plan o documento deberá someter al dictamen de la autoridad administrativa competente en materia de medio ambiente:
- bien, el proyecto de plan o de documento elaborado según lo dispuesto en el punto I del artículo L. 122-4, al que acompañará un informe ambiental;
- o bien, la decisión motivada de denegación de autorización para realizar la evaluación ambiental de un proyecto de un proyecto de plan o de documento según lo dispuesto en el punto III del artículo L. 122-4.
A falta de respuesta en el plazo de tres meses, se considerará que dicho dictamen es favorable. La autoridad estatal competente en materia de medio ambiente será consultada, en tanto sea necesario, sobre el
grado de precisión de la información que deba contener el informe ambiental.
Artículo L122-8 (Introducido por la Disposición nº 2004-489 de 3 de junio de 2004 art. 1 IV Diario Oficial de 5 de junio de 2004)
El informe ambiental se hará público antes de la adopción del plan o documento. El proyecto de plan o de documento y el informe ambiental al que se incorporarán como anexo, en su caso, los
dictámenes mencionados en el artículo L. 122-7, se pondrán a disposición pública con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Cuando el proyecto de plan o de documento fuera sometido a consulta pública, ésta será considerada como disposición pública en el sentido del presente artículo.
Artículo L122-9 (Introducido por la Disposición nº 2004-489 de 3 de junio de 2004 art. 1 IV Diario Oficial de 5 de junio de 2004)
Los proyectos de planes o de documentos cuya aplicación fuera susceptible de producir efectos notables en el medio ambiente de otro Estado miembro de la Comunidad Europea, deberán remitirse a las autoridades de dicho Estado, a petición de las mismas o por iniciativa de de las autoridades francesas. Se solicitará al Estado en cuestión que emita su dictamen dentro de un plazo establecido por decreto adoptado en Conseil d'Etat. A falta de respuesta a la expiración de dicho plazo, se considerará que el dictamen es favorable.
Cuando un proyecto de plan o de documento, cuya aplicación fuera susceptible de producir efectos notables en el territorio nacional, fuera sometido al dictamen de las autoridades francesas por parte de otro Estado, se podrá decidir consultar a los ciudadanos sobre dicho proyecto.
Artículo L122-10 (Introducido por la Disposición nº 2004-489 de 3 de junio de 2004 art. 1 IV Diario Oficial de 5 de junio de 2004)
I. - Cuando el plan o documento hubiera sido adoptado, la autoridad responsable de su adopción informará de ello a los ciudadanos, a la autoridad administrativa del Estado competente en materia de medio ambiente y, en su caso, a las autoridades de los Estados miembros que hubieran sido consultados al respecto. Pondrá a su disposición la siguiente información:
1° El plan o el documento; 2° Una declaración que presente de manera resumida: - la manera en que se hubieran tenido en cuenta el informe establecido según lo dispuesto en el artículo L. 122-6 y
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CÓDIGO DE MEDIO AMBIENTE las consultas realizadas;
- los motivos en los que se sustentaran las opciones elegidas por el plan o documento teniendo en cuenta de las diferentes soluciones contempladas;
- las medidas destinadas a evaluar el impacto en el medio ambiente de la puesta en práctica del plan o documento. II. - Cuando un proyecto de plan o de documento no hubiera sido sometido a la evaluación ambiental en aplicación
de lo dispuesto en el punto III del artículo L. 122-4, la autoridad responsable de su elaboración informará a los ciudadanos sobre los motivos de dicha decisión.
Artículo L122-11 (Introducido por la Disposición nº 2004-489 de 3 de junio de 2004 art. 1 IV Diario Oficial de 5 de junio de 2004)
Por decreto adoptado en Conseil d'Etat se precisarán las condiciones de aplicación de la presente sección para cada una de las categorías de planes o documentos arriba mencionados.
Capítulo III Consultas públicas relativas a las actuaciones susceptibles de afectar al medio
ambiente Artículos L123-1 a L123-16
Sección I Ámbito de aplicación y objeto de la consulta pública Artículos L123-1 a
L123-3
Artículo L123-1 (Ley nº 2002-276 de 27 de febrero de 2002 art. 138 Diario Oficial de 28 de febrero de 2002)
I.- La realización de obras, construcciones o trabajos de titularidad pública o privada estará precedida de una consulta pública de conformidad con lo dispuesto en el presente capítulo, siempre que estas actuaciones, por su naturaleza y su consistencia, pudieran afectar al medio ambiente. La lista de las categorías de actuaciones citadas en el párrafo anterior así como los valores límites y criterios técnicos que sirvan para definirlas serán fijados por decreto adoptado en Conseil d'Etat. Estos valores límites o criterios podrán ser modulados para tener en cuenta la sensibilidad del medio y de las zonas que se beneficien de protección medioambiental en virtud de disposiciones legislativas o reglamentarias.
II - La decisión de apertura del procedimiento de consulta pública correspondiente al proyecto de una entidad territorial, de una agrupación de entidades territoriales o de una de sus entidades públicas dependientes será tomada por el presidente del órgano deliberante de la entidad territorial o pública. Sin embargo, cuando la consulta fuera realizada con carácter previo a una declaración de utilidad pública, la decisión será tomada por la correspondiente autoridad competente del Estado.
Artículo L123-2 Cuando en virtud de la legislación vigente la aprobación de documentos de urbanismo o de las actuaciones
mencionadas en el artículo L.123-1 estuvieran sujetas a un procedimiento específico de consulta pública, serán aplicables las normas que rijan dichas consultas, en la medida en que no fueran contrarias a lo dispuesto en el presente capítulo.
Las obras que se ejecutaran para prevenir un peligro grave e inminente quedarán excluidas del ámbito de aplicación del presente capítulo.
Artículo L123-3 La consulta mencionada en el artículo L.123-1 tendrá por objeto informar a la opinión pública y recabar sus
apreciaciones, sugerencias y contrapropuestas, con posterioridad al estudio de impacto ambiental cuando éste fuera requerido, a fin de que la autoridad competente pueda disponer de todos los elementos necesarios para su información.
Sección II Procedimiento y desarrollo de la consulta pública Artículos L123-4 a
L123-16
Artículo L123-4 Dependiendo de la naturaleza e importancia de las actuaciones, la consulta mencionada en el artículo L.123-1 será
dirigida por un comisario de investigación o por una Comisión de investigación nombrados por el presidente del Tribunal administrativo o un miembro de dicho tribunal delegado a dichos efectos.
Una Comisión presidida por el presidente del Tribunal administrativo o el magistrado en que éste delegue establecerá una lista de personas aptas para cada departamento. Esta lista se hará pública y será objeto de al menos una revisión anual.
El presidente del Tribunal administrativo designará al comisario de investigación o a los miembros de la Comisión de investigación entre las personas que figuran en la lista de personas aptas. La elección no quedará limitada a las listas de los departamentos comprendidos dentro de la jurisdicción del tribunal.
Artículo L123-5 A petición del comisario de investigación o del presidente de la Comisión de investigación, y siempre que las
especificidades de la consulta lo requieran, el presidente del Tribunal administrativo o el magistrado en que delegue podrá nombrar a un perito encargado de asistir al comisario de investigación o al presidente de la Comisión de
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CÓDIGO DE MEDIO AMBIENTE investigación. El coste de este dictamen pericial correrá a cargo de la entidad adjudicadora.
Artículo L123-6 Las personas interesadas en la actuación por motivos personales o en razón de las funciones que desempeñen,
especialmente dentro de la entidad, organismo o servicio encargado de la gestión, dirección o control de la actuación sometida a consulta pública, no podrán ser designadas comisarios de investigación o miembros de la Comisión de investigación.
Lo dispuesto en el párrafo anterior podrá aplicarse a las personas que hubieran desempeñado estas funciones, en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L123-7 Al menos con quince días de antelación a la apertura de la consulta y durante la misma, la autoridad competente,
haciendo uso de todos los medios apropiados de publicidad, sobre todo en los lugares afectados por la consulta, y, dependiendo de la importancia y la naturaleza del proyecto, a través de la prensa escrita o la comunicación audiovisual, informará públicamente del objeto de la consulta, de los nombres y calidades del comisario de investigación o de los miembros de la Comisión de investigación, de la fecha de apertura, del lugar donde tendrá lugar la consulta y de su duración.
El periodo de duración de la consulta no podrá ser inferior a un mes. El comisario de investigación o el presidente de la Comisión de investigación podrán prolongar la consulta por un
periodo máximo de quince días mediante decisión motivada.
Artículo L123-8 No obstante lo dispuesto en el título I de la Ley nº 78-753 de 17 de julio de 1978, que establece diversas medidas
para la mejora de las relaciones entre la administración y los ciudadanos, así como lo establecido en diversas disposiciones de orden administrativo, social y fiscal, el expediente de consulta pública será comunicado a las asociaciones de protección del medio ambiente autorizadas en virtud de lo establecido en el artículo L.141-1, corriendo los gastos de su cuenta.
Artículo L123-9 (Ley nº 2002-276 de 27 de febrero de 2002 art. 141 Diario Oficial de 28 de febrero de 2002) (Ley nº 2003-699 de 30 de julio de 2003 art. 1 Diario Oficial de 31 de julio de 2003)
El comisario de investigación o el presidente de la Comisión de investigación dirigirá la consulta de forma que los ciudadanos puedan conocer el proyecto completo y presentar sus apreciaciones, sugerencias y contrapropuestas.
Recibirá al titular del proyecto sometido a consulta pública. Podrá recibir todo tipo de documentos, visitar los lugares afectados por el proyecto, exceptuando los lugares de
vivienda, después de que la autoridad competente haya informado con antelación a los propietarios y ocupantes; podrá asimismo oír a todas las personas cuyas declaraciones estime útiles y convocar al titular del proyecto o a sus representantes, así como a las autoridades administrativas interesadas.
Podrá organizar, bajo su presidencia, una reunión de información e intercambio de opiniones con los ciudadanos en presencia del titular del proyecto. Cuando la consulta pública se refiera a una solicitud de autorización correspondiente a una instalación que figura en la lista prevista en el punto IV del artículo L.515-8, dicha reunión será obligatoria a petición del Alcalde del municipio en cuyo territorio se situará la instalación, o del presidente de una entidad pública de cooperación intermunicipal competente en materia de urbanismo o de desarrollo económico cuyos límites incluya el territorio del municipio donde se situará la instalación (NOTA).
Sin perjuicio de lo dispuesto en el artículo L.123-15, el titular del proyecto comunicará al público los documentos existentes que el comisario de investigación o el presidente de la Comisión de investigación estimen útiles para que los ciudadanos estén bien informados. En caso de que el titular del proyecto se negara a comunicar la comunicación, se incluirá su respuesta motivada en el expediente de la consulta.
El comisario de investigación o la Comisión de investigación estarán a disposición de las personas o representantes de las asociaciones que soliciten ser oídos.
NOTA: Ley n° 2003-699 art. 81 I : Esta disposición no se aplicará a las consultas abiertas con anterioridad a la publicación de la Ley nº 2003-699.
Artículo L123-10 El informe y las conclusiones motivadas del comisario de investigación o de la Comisión de investigación se harán
públicos. En el informe tendrán que constar las contrapropuestas presentadas durante la consulta, así como las eventuales respuestas del titular del proyecto, en particular a las peticiones de comunicación de documentos que le hubieran sido dirigidas.
Artículo L123-11 Cuando una actuación sujeta a una autorización administrativa tenga que ser objeto de una consulta pública
regulada por el presente capítulo, esta autorización sólo podrá ser concedida mediante una decisión expresa.
Artículo L123-12 (Disposición nº 2000-914 de 18 de septiembre de 2000 art. 12-2º Diario Oficial de 21 de septiembre de 2000 con entrada en vigor el 1 de enero de 2001)
El juez de procedimientos sumarios del Tribunal administrativo que conociera de una demanda de suspensión de una decisión adoptada tras las conclusiones desfavorables del comisario de investigación o de la Comisión de
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CÓDIGO DE MEDIO AMBIENTE investigación, admitirá a trámite esta demanda siempre que su contenido pueda crear una duda razonable en cuanto a su legalidad durante la tramitación.
Lo dispuesto en el párrafo anterior se aplicará asimismo siempre que se hubiera adoptado una decisión sin haberse realizado la consulta pública requerida por el presente capítulo.
Todo proyecto de una entidad territorial o de una agrupación de entidades territoriales que hubiera dado lugar a conclusiones desfavorables por parte del comisario de investigación o de la Comisión de investigación tendrá que someterse a la deliberación del órgano competente de la entidad territorial o agrupación correspondiente.
Artículo L123-13 Cuando las obras o construcciones objeto de una consulta pública no hubieran comenzado en el plazo de cinco
años a partir de la decisión, tendrá que realizarse una nueva consulta, salvo que antes de la expiración del anterior plazo se hubiera concedido una prórroga de otros cinco años como máximo en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Lo dispuesto en el presente artículo no impedirá la aplicación de disposiciones más restrictivas previstas en las normas propias de cada actuación.
Artículo L123-14 (Ley nº 2002-276 de 27 de febrero de 2002 art. 142 Diario Oficial de 28 de febrero de 2002)
Los gastos de la consulta correrán a cargo del titular del proyecto, especialmente la indemnización de los comisarios de investigación y de los miembros de las comisiones de investigación, al igual que los gastos generados por la puesta a disposición del comisario de investigación o de la Comisión de investigación de los medios materiales necesarios para la organización y el desarrollo del procedimiento de la consulta pública.
El presidente del Tribunal administrativo o el magistrado por él designado a estos efectos que conociera de una demanda de este tipo presentada por el comisario de investigación o el presidente de la Comisión de investigación, ordenará el pago de una provisión de fondos por parte del titular del proyecto cuyo importe será fijado por éL.La consulta pública no podrá ser abierta hasta que se realice el abono de dicha provisión.
Con la finalidad de garantizar la independencia de los comisarios de investigación y de los miembros de las comisiones de investigación, un decreto adoptado en Conseil d'Etat determinará las condiciones en las cuales serán fijadas las reglas de indemnización de los mismos así como las formas de pago de las sumas correspondientes adeudadas por los titulares del proyecto a los interesados.
Artículo L123-15 El desarrollo de la consulta estará sujeto al secreto de defensa nacional, al secreto industrial y a cualquier otro
secreto protegido por Ley.
Artículo L123-16 Las condiciones de aplicación del presente capítulo serán determinadas por decreto adoptado en Conseil d'Etat,
principalmente en lo referente a los plazos máximos y a las condiciones de fechas y horarios de la consulta pública.
Capítulo IV Libertad de acceso a la información ambiental Artículos L124-1 a
L124-8
Artículo L124-1 (Disposición nº 2001-321 de 11 de abril de 2001 art. 9 II Diario Oficial de 14 de abril de 2001) (Disposición nº 2001-321 de 11 de abril de 2001 art. 9 III Diario Oficial de 14 de abril de 2001) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 2 Diario Oficial de 27 de octubre de 2005)
El derecho de las personas a acceder a la información ambiental que tuvieran, recibieran, establecieran o hicieran establecer las autoridades públicas mencionadas en el artículo L. 124-3, se ejercerá conforme a lo dispuesto en el Título I de la Ley n° 78-753 de 17 de julio de 1978, por la que se establecen diversas medidas para la mejora de las relaciones entre la administración y los ciudadanos y en diversas normas de orden administrativo, social y fiscal, sin perjuicio de las disposiciones del presente capítulo.
Artículo L124-2 (Disposición nº 2001-321 de 11 de abril de 2001 art. 9 II Diario Oficial de 14 de abril de 2001) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 2 Diario Oficial de 27 de octubre de 2005)
Será considerada como información ambiental en el sentido del presente capítulo, cualquier información disponible, cualquiera que fuera su soporte material, cuyo objeto fuera:
1º El estado de los elementos naturales, especialmente del aire, la atmósfera, el agua, el suelo, las tierras, los paisajes, los espacios naturales, las zonas costeras o marinas y la diversidad biológica, así como las interacciones entre esos elementos;
2º Las decisiones, las actividades y los factores, especialmente las sustancias, la energía, el ruido, las radiaciones, los residuos, las emisiones, los vertidos y descargas susceptibles de tener una incidencia en el estado de los elementos citados en el apartado 1°;
3º El estado de salud y seguridad de las personas, las condiciones de vida de las mismas, las construcciones y el patrimonio cultural, en la medida en que fueran o pudieran ser alterados por elementos naturales, decisiones, actividades o factores de los mencionados en el párrafo anterior;
4º Los análisis de costes y ventajas, así como las hipótesis económicas utilizadas en el marco de las decisiones y
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CÓDIGO DE MEDIO AMBIENTE actividades citadas en el apartado 2°;
5º Los informes elaborados por las autoridades públicas o por cuenta de éstas, sobre la aplicación de disposiciones legales o reglamentarias relativas al medio ambiente.
Artículo L124-3 (Disposición nº 2001-321 de 11 de abril de 2001 art. 9 II Diario Oficial de 14 de abril de 2001) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 2 Diario Oficial de 27 de octubre de 2005)
Toda persona que lo solicite tendrá derecho a obtener información ambiental que obrara en poder de: 1º El Estado, las entidades territoriales y sus agrupaciones, las entidades públicas; 2º Las personas encargadas de una misión de servicio público relacionada con el medio ambiente, siempre que la
información tuviera que ver con el ejercicio de dicha misión. No estarán sujetos a lo dispuesto en el presente capítulo los organismos o instituciones que actuaran en el ejercicio
de sus competencias jurisdiccionales o legislativas.
Artículo L124-4 (Disposición nº 2001-321 de 11 de abril de 2001 art. 9 II Diario Oficial de 14 de abril de 2001) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 2 Diario Oficial de 27 de octubre de 2005)
I. - Tras valorar el interés de difundir una información, la autoridad pública podrá denegar la solicitud de información ambiental, cuando la consulta de la misma o su difusión perjudicaran:
1º Los intereses mencionados en el artículo 6 de la Ley n° 78-753 de 17 de julio de 1978 antes citada, con excepción de los intereses a que se refieren los párrafos sexto y último del punto I de dicho artículo;
2º La protección del medio ambiente al que está referida; 3º Los intereses de la persona física que hubiera aportado la información solicitada sin estar obligado a ello por una
disposición legal o reglamentaria o por un documento de una autoridad administrativa o jurisdiccional, y no hubiera dado su consentimiento para divulgarla.;
4º La protección de la información prevista por el artículo 6 de la Ley n° 51-711 de 7 de junio de 1951 sobre la obligación, la coordinación y el secreto en materia de estadísticas.
II. - Sin perjuicio de lo dispuesto en el punto II del artículo L. 124-6, la autoridad pública también podrá denegar: 1º Cualquier solicitud de información relativa a documentos en curso de elaboración; 2º Cualquier solicitud relativa a una información de la que no dispone; 3º Cualquier solicitud que hubiera sido formulada de forma demasiado general.
Artículo L124-5 (Introducido por la Ley nº 2005-1319 de 26 de octubre de 2005 art. 2 Diario Oficial de 27 de octubre de 2005)
I. - Cuando una autoridad pública recibiera una solicitud de información relativa a los factores mencionados en el apartado 2° del artículo L. 124-2, deberá indicará a su autor, siempre que éste lo solicite, la dirección en la que el mismo podrá informarse acerca de los procedimientos y métodos utilizados para la elaboración de datos.
II. - La autoridad pública solamente podrá denegar una solicitud de información relativa a emisiones de sustancias a la atmósfera cuando la consulta o difusión de dicha información perjudicara :
1º La política exterior de Francia, la seguridad pública o la defensa nacional; 2º El desarrollo de los procedimientos jurisdiccionales o la investigación de infracciones que pudieran dar lugar a
sanciones penales; 3º Derechos de propiedad intelectual.
Artículo L124-6 (Introducido por la Ley nº 2005-1319 de 26 de octubre de 2005 art. 2 Diario Oficial de 27 de octubre de 2005)
I. - La decisión de denegación de una solicitud de información ambiental será notificada al solicitante, debiéndose indicar por escrito los motivos en que se sustenta la denegación, así como las vías y plazos de recurso. No será de aplicación el artículo 5 de la Ley nº 79-587 de 11 de julio de 1979 relativa a la motivación de los documentos administrativos y a las medidas para mejorar las relaciones entre la administración y los ciudadanos.
II. - Cuando la denegación estuviera sustentada en el apartado 1° del punto II del artículo L. 124-4, esta decisión indicará el plazo en que estará finalizado, así como la autoridad pública encargada de su elaboración.
Cuando la denegación estuviera basada en el apartado 2° del punto II del artículo L. 124-4, la decisión indicará, en su caso, la autoridad pública en cuyo poder obra la información.
Ninguna solicitud podrá ser denegada basándose en el apartado 3° del punto II del artículo L. 124-4 hasta después de que la autoridad pública hubiera solicitado al interesado que aportara las precisiones necesarias y le hubiera prestado su ayuda con este fin.
Artículo L124-7 (Introducido por la Ley nº 2005-1319 de 26 de octubre de 2005 art. 2 Diario Oficial de 27 de octubre de 2005)
I. - Las autoridades públicas adoptarán las medidas necesarias para que los ciudadanos tengan conocimiento de sus derechos de acceso a la información ambiental que obra en poder de estas y velarán por que los mismos puedan acceder a la información que soliciten. Elaborarán a este efecto registros de acceso gratuito que contengan una relación de las diferentes categorías de información ambiental que obre en su poder, indicando el lugar en que dicha información puede ser consultada.
II. - Las autoridades públicas velarán por que la información ambiental recabada por ellas, o por cuenta de ellas, sea precisa, se mantenga actualizada y permita la comparación. Las mismas se encargarán de la conservación de
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CÓDIGO DE MEDIO AMBIENTE dicha información para facilitar su difusión por medios electrónicos.
Artículo L124-8 (Introducido por la Ley nº 2005-1319 de 26 de octubre de 2005 art. 2 Diario Oficial de 27 de octubre de 2005)
Por decreto adoptado en Conseil d'Etat, previo dictamen de la comisión de acceso a los documentos administrativos, se precisarán las modalidades de aplicación del presente capítulo. Dicho decreto definirá las categorías de información ambiental que debieran hacerse públicas y fijará el plazo en que debieran serlo. Determinarán las modalidades de puesta a disposición pública por parte del Estado y de las entidades territoriales, cada cual en su ámbito de intervención, de la relación de entidades públicas y demás personas mencionadas en el artículo L. 124-3 que dependen de ellas o se encuentran bajo su control.
Capítulo V Otros modos de información Artículos L125-1 a
L125-5
Artículo L125-1 (introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 9 I, II Diario Oficial de 14 de abril de 2001)
I. - Toda persona tendrá derecho a ser informada de los efectos perjudiciales para la salud humana y el medio ambiente producidos por la recogida, el transporte, el tratamiento, el almacenamiento y el depósito de residuos, así como de las medidas adoptadas para prevenir o compensar estos efectos.
II. - Este derecho consistirá especialmente en: 1° La comunicación, por parte del titular de la explotación de una instalación de eliminación de residuos, de los
documentos establecidos según lo dispuesto en el capítulo I del título I del libro V, los cuales permiten medir los efectos de la actividad de la instalación sobre la salud pública y el medio ambiente y señalan las medidas que se hubieran adoptado para eliminar o reducir los efectos nocivos producidos por los residuos;
2° La creación de una Comisión Local de Información y Vigilancia en todos los lugares de eliminación o de almacenamiento de residuos, por iniciativa bien del Prefecto, bien del Consejo Municipal del municipio de implantación o de un municipio limítrofe. Esta Comisión estará formada, a partes iguales, por representantes de las administraciones públicas afectadas, del titular de la explotación, de las entidades territoriales y de las correspondientes asociaciones de protección del medio ambiente. El Prefecto, que presidirá la Comisión, ordenará a petición de ésta los controles que la misma estime necesarios para sus trabajos, de conformidad con lo dispuesto en el título I o el título IV (capítulo I) del libro V. Los documentos establecidos por el titular de la explotación de una instalación de eliminación de residuos para medir los efectos de su actividad sobre la salud pública y el medio ambiente serán remitidos a la Comisión. Los gastos de establecimiento y de funcionamiento de la Comisión Local de Información y Vigilancia serán sufragados por la agrupación contemplada en el artículo L.541-43, cuando existiera. A falta de dicha agrupación, los gastos serán sufragados a partes iguales por el Estado, las entidades territoriales y el titular de la explotación de la instalación;
3° La elaboración, por los municipios o las entidades públicas de cooperación intermunicipal o de las comunidades de entidades administrativas mixtas citadas en el artículo L.2224-13 del Código General de Entidades Territoriales así como por los Prefectos, de documentos que permitan valorar las medidas adoptadas para eliminar los residuos que están bajo su responsabilidad. Dichos documentos podrán ser consultados libremente.
III. - Un decreto adoptado en Conseil d'Etat definirá las condiciones de ejercicio de este derecho. Determinará, en particular, los procedimientos a través de los cuales esta información llegará al conocimiento público.
IV. - Lo dispuesto en el presente artículo se aplicará sin perjuicio de lo dispuesto en la Ley n° 78-753 de 17 de julio de 1978, por la que se establecen diversas medidas para la mejora de las relaciones entre la Administración y los ciudadanos y en otras disposiciones de orden administrativo, social y fiscal.
Artículo L125-2 (Disposición nº 2001-321 de 11 de abril de 2001 art. 9 I, II Diario Oficial de 14 de abril de 2001) (Ley nº 2003-699 de 30 de julio de 2003 art. 2, art. 40 Diario Oficial de 31 de julio de 2003) (Ley nº 2004-811 de 13 de agosto de 2004 art. 102 II Diario Oficial de 17 de agosto de 2004)
Los ciudadanos tendrán derecho a la información sobre los riesgos mayores a los que están sometidos en determinadas zonas del territorio y sobre las medidas de protección que les amparan. Este derecho se aplicará a los riesgos tecnológicos y a los riesgos naturales previsibles.
En los municipios en cuyo territorio se hubiera adoptado o aprobado un plan de prevención de riesgos naturales previsibles, el Alcalde informará a la población al menos una vez cada dos años, a través de reuniones públicas municipales, sobre las características de los riesgos naturales conocidos en el municipio, las posibles medidas de prevención y protección, las disposiciones del plan, los procedimientos de alerta, la organización de las operaciones de salvamento, las medidas municipales adoptadas para la gestión del riesgo y las garantías previstas en el artículo L. 125-1 del Código de Seguros. Esta información será proporcionada con la ayuda de los servicios competentes del Estado, a partir de la información facilitada al Alcalde por el representante del Estado en el departamento, cuando la misma se refiera, sobre todo, a las medidas adoptadas en aplicación de la Ley nº 2004-811 de 13 de agosto de 2004 relativa a la modernización de la seguridad civil y no se refiera a las medidas ejecutadas por el Alcalde según lo dispuesto en el artículo L. 2212-2 del Código General de Entidades Territoriales.
Por decreto adoptado en Conseil d'Etat se definirán las condiciones para el ejercicio de este derecho. Se determinará, en particular, los procedimientos a través de los cuales se darán a conocer a los ciudadanos las medidas de protección, así como las categorías de los locales en los que la información será anunciada.
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CÓDIGO DE MEDIO AMBIENTE El titular de la explotación tendrá que participar en la información general pública acerca de las medidas adoptadas
en las áreas contiguas a las construcciones o instalaciones que fueran objeto de un plan de intervención especial. El Prefecto creará un comité local de información y diálogo sobre los riesgos para todas las áreas industriales que
incluyan una o varias instalaciones de entre las que figuran en el listado previsto en el punto IV del artículo L. 515-8. Este comité podrá solicitar la asistencia de peritos reconocidos, especialmente para la realización de dictámenes periciales independientes. El mismo estará informado de cualquier incidente o accidente que afecte a la seguridad de las instalaciones anteriormente citadas. El Estado lo dotará con los medios necesarios para cumplir su misión. Las condiciones de aplicación del presente párrafo y, en particular, las normas que rigen la composición de los comités locales de información y diálogo sobre los riesgos, serán fijadas por decreto.
Artículo L125-3 (introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 9 I, II Diario Oficial de 14 de abril de 2001)
Toda persona tendrá derecho a ser informada de los efectos que la liberación voluntaria de organismos modificados genéticamente en el sentido del título III del libro V pudiera tener para la salud pública o el medio ambiente, sin perjuicio del debido respeto a la confidencialidad de las informaciones protegidas por la Ley.
Un decreto adoptado en Conseil d'Etat definirá las condiciones en las que la autoridad administrativa informará públicamente sobre los efectos que dicha liberación voluntaria pueda tener para la salud pública o el medio ambiente. Asimismo, este decreto determinará las obligaciones que podrán ser impuestas por este concepto al titular de la autorización, especialmente en lo referente al pago de la totalidad o parte de los gastos correspondientes.
Artículo L125-4 (introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 9 I, II Diario Oficial de 14 de abril de 2001)
Se reconocerá a toda persona en el conjunto del territorio el derecho a obtener información sobre la calidad del aire y sus efectos sobre la salud y el medio ambiente. El Estado garantizará el ejercicio de este derecho, la fiabilidad de la información y su difusión. Este derecho se ejercerá conforme a las condiciones establecidas en la sección 2 del capítulo I del título II del libro II.
Artículo L125-5 (Ley nº 2003-699 de 30 de julio de 2003 art. 77 Diario Oficial de 31 de julio de 2003) (Disposición nº 2005-655 de 8 de junio de 2005 art. 21 Diario Oficial de 9 de junio de 2005)
Los compradores o arrendatarios de bienes inmuebles ubicados en zonas acogidas a un plan de prevención de riesgos tecnológicos o a un plan de prevención de riesgos naturales previsibles, prescrito o aprobado, o en zonas sísmicas definidas por decreto adoptado en Conseil d'Etat, serán informados por el vendedor o el arrendador de la existencia de los riesgos citados en este plan o este decreto.
A este efecto se elaborará un informe de riesgos naturales y tecnológicos basado en la información proporcionada por el Prefecto. En caso de venta del inmueble, se deberá presentar dicho informe con arreglo a las condiciones y procedimientos establecidos en los artículos L. 271-4 y L. 271-5 del Código de la Construcción y de la Vivienda.
II. - En caso de arrendamiento del inmueble, se deberá proporcionar el informe de riesgos naturales y tecnológicos al nuevo arrendatario, con arreglo a las condiciones y procedimientos establecidos en el artículo 3-1 de la Ley n° 89-462 de 6 de julio de 1989, por la que se establecen diversas medidas para mejorar las relaciones arrendaticias y se modifica la Ley nº 86-1290 de 23 de diciembre de 1986.
III. - El Prefecto establecerá la lista de municipios en los que se aplicarán las disposiciones de los puntos I y II, así como la relación de riesgos y documentación que deban tenerse en cuenta para cada municipio afectado.
IV.- Cuando un inmueble edificado hubiera sufrido un siniestro que diera lugar al pago de una indemnización según lo dispuesto en el artículo L. 125-2 o del artículo L. 128-2 del Código de Seguros, el vendedor o el arrendador del inmueble tendrá que informar por escrito al comprador o arrendatario de todos los siniestros ocurridos durante el periodo en que hubiera sido el propietario del inmueble o de los siniestros de los que hubiera sido informado en aplicación de las presentes disposiciones. En caso de venta del inmueble, esta información será mencionada en la escritura pública de compraventa.
V. - En caso de incumplimiento de lo dispuesto en el presente artículo, el comprador o el arrendatario podrá solicitar la rescisión del contrato o instar al juez una reducción del precio.
VI. - Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente artículo.
Capítulo VI Declaración de proyecto Artículo L126-1
Artículo L126-1 (Introducido por la Ley nº 2002-276 de 27 de febrero de 2002 art. 144 Diario Oficial de 28 de febrero de 2002)
Cuando un proyecto público para la realización de trabajos, obras o construcciones hubiera sido objeto de una consulta pública según lo dispuesto en el capítulo III del presente título, la autoridad estatal o el órgano deliberante de la Entidad territorial o de la Entidad Pública responsable del proyecto, se pronunciará sobre el interés general de la actuación proyectada emitiendo una declaración de proyecto.
La declaración de proyecto hará mención del objeto de la actuación, tal como figura en el expediente sometido a consulta, e incluirá los motivos y consideraciones que justifiquen su carácter de interés generaL.Indicará, en su caso, la naturaleza y los motivos de las principales modificaciones que, sin alterar la estructura general del proyecto, se introdujeran en el mismo a la vista de los resultados de la consulta pública.
Cuando la declaración de proyecto no hubiera sido emitida en el plazo de un año a partir de la finalización de la
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CÓDIGO DE MEDIO AMBIENTE consulta, la actuación no podrá realizarse sin que se lleve a cabo una nueva consulta.
A falta de declaración proyecto, no se podrá conceder ninguna autorización. Dicha declaración caducará transcurridos cinco años desde su publicación sin que se hubiera autorizado la
ejecución de las obras. No obstante, si no se hubiera producido ningún cambio en las circunstancias de hecho o de derecho, se podrá prorrogar una vez el plazo por el mismo periodo de tiempo, sin que fuera necesaria otra consulta, mediante una nueva declaración de proyecto idéntica a la declaración inicial y antes de la expiración del plazo de cinco años.
La declaración de proyecto será publicada en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Título III Instituciones Artículos L131-1 a
L132-2
Capítulo I Instituciones que intervienen en el ámbito de la protección del medio ambiente Artículos L131-1 a
L131-8
Sección I Consejo Departamental y Comité Regional de Medio Ambiente Artículos L131-1 a
L131-2
Artículo L131-1 (Ley nº 2003-699 de 30 de julio de 2003 art. 44 Diario Oficial de 31 de julio de 2003)
Se creará, en cada departamento, un Consejo Departamental de Medio Ambiente. Este Consejo estará formado, principalmente, por miembros de la Comisión de Espacios Naturales, Perspectivas y Paisajes, del Consejo Departamental de Caza y Fauna Silvestre, de la Comisión Departamental de Canteras, del Consejo Departamental de Higiene y de la Comisión Departamental de Riesgos Naturales Mayores. Representará de forma equilibrada los diferentes intereses en juego teniendo en cuenta su representatividad. Estará presidido por el Prefecto o por su representante.
El Prefecto o el presidente del Consejo General podrán someter a su consideración cualquier cuestión relativa al medio ambiente o a la calidad de vida del departamento cuando no fuera competencia exclusiva de uno de los organismos mencionados en el párrafo primero. Será consultado, asimismo, en el caso previsto en el artículo L.310-2.
Cuando el Consejo delibere sobre alguna cuestión cuya competencia correspondiera al departamento, el presidente del Consejo General o su representante asumirá la presidencia.
Un decreto adoptado en Conseil d'Etat precisará las condiciones de aplicación del presente artículo
Artículo L131-2 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 1º Diario Oficial de 3 de julio de 2003)
En cada región se creará un Comité Regional de Medio Ambiente. Presidido por el Presidente del Consejo Regional o por su representante, este Comité estará compuesto como
sigue: en su mitad, de consejeros regionales, en su cuarta parte de representantes de las asociaciones de protección del medio ambiente autorizadas en concepto del artículo L.141-1 nombrados por el Prefecto de la región y, en su cuarta parte restante, de personalidades cualificadas designadas por el Presidente del Consejo Regional.
El Presidente del Consejo Regional o el Presidente del Consejo Económico y Social Regional le confiará una misión de reflexión, de propuesta y de diálogo sobre todos los temas o proyectos de interés regional relacionados con el medio ambiente.
En este concepto, podrá establecer, junto con los departamentos correspondientes, un inventario del patrimonio paisajístico de la región.
Asimismo, este Comité estudiará los diferentes aspectos de la contaminación atmosférica y sus efectos sobre el medio ambiente y la salud, con la ayuda de los organismos autorizados recogidos en el artículo L.221-3.
Sección II Agencia del Medio Ambiente y de Control de la Energía Artículos L131-3 a
L131-7
Artículo L131-3 (Disposición nº 2004-637 de 1 de julio de 2004 art. 27 I Diario Oficial de 2 de julio de 2004)
I. - La Agencia de Medio Ambiente y de Control de la Energía es un organismo público estatal de carácter industrial y comercial.
II. - Dicho organismo público desarrollará actuaciones dirigidas principalmente a la orientación, promoción, investigación, prestación de servicios, información e incentivación en cada uno de los ámbitos siguientes:
1° La prevención y lucha contra la contaminación del aire; 2° La reducción de la producción de residuos, su recuperación y valorización, la protección de los suelos y la
restauración de los espacios naturales contaminados ; 3° El reacondicionamiento y la vigilancia de instalaciones de almacenamiento de residuos finales autorizadas con
posterioridad al 14 de julio de 1992, cuando estas actuaciones resultaran necesarias debido a la ausencia o
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CÓDIGO DE MEDIO AMBIENTE insuficiencia de garantías por parte del titular de la explotación;
4° La realización de ahorro de energía y materias primas y el desarrollo de energías renovables, especialmente de origen vegetal;
5° El desarrollo de las tecnologías limpias y de bajo consumo energético; 6° La lucha contra la contaminación acústica. III. - La Agencia coordinará sus actuaciones conjuntamente con las desarrolladas por las agencias del agua en los
ámbitos de interés común. IV. - Para el cumplimiento de su misión, la Agencia dispondrá de una delegación en cada región.
Artículo L131-4 (Disposición nº 2004-637 de 1 de julio de 2004 art. 27 I Diario Oficial de 2 de julio de 2004)
El consejo de administración de la Agencia estará formado por: 1° Representantes del Estado; 2° Miembros del Parlamento; 3° Representantes de las entidades territoriales; 4° Personas cualificadas, representantes de asociaciones de protección del medio ambiente autorizadas en virtud
del artículo L. 141-1 y representantes de agrupaciones profesionales interesadas; 5° Representantes del personal, en las condiciones establecidas en el párrafo segundo del artículo 4 de la Ley n
83-675 de 26 de julio de 1983, relativa a la democratización del sector público.
Artículo L131-5 (Disposición nº 2004-637 de 1 de julio de 2004 art. 27 I Diario Oficial de 2 de julio de 2004)
La Agencia estará dotada de un Consejo Científico cuya composición será determinada conjuntamente por los Ministros de Medio Ambiente, de Investigación y de Industria.
Artículo L131-6 (Disposición nº 2004-637 de 1 de julio de 2004 art. 27 I Diario Oficial de 2 de julio de 2004)
La Agencia podrá conceder subvenciones y anticipos reembolsables. Podrá también recaudar compensaciones por las invenciones y procedimientos nuevos a cuyo desarrollo hubiera
contribuido, compensaciones por los servicios prestados y el producto de tasas parafiscales.
Artículo L131-7 (Disposición nº 2004-637 de 1 de julio de 2004 art. 27 I Diario Oficial de 2 de julio de 2004)
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación de los artículos L. 131-3 a L. 131-6.
Sección III Agrupaciones de interés público en el ámbito del medio ambiente Artículo L131-8
Artículo L131-8 (Disposición nº 2004-637 de 1 de julio de 2004 art. 27 I Diario Oficial de 2 de julio de 2004)
Podrán constituirse agrupaciones de interés público dotadas de personalidad jurídica y autonomía financiera, entre personas de derecho público o privado que incluyan al menos una persona jurídica de derecho público, para ejercer conjuntamente y por periodo determinado actividades en el ámbito del medio ambiente, así como para crear o gestionar conjuntamente dotaciones de infraestructuras, personal o servicios comunes necesarios para estas actividades.
Las disposiciones previstas en el artículo 21 de la Ley nº 82-610 de 15 de julio de 1982, de orientación y programación para la investigación y el desarrollo tecnológico de Francia, serán aplicables a estas agrupaciones de interés público. En todo caso, para el nombramiento del director se requerirá la aprobación del Ministro de Medio Ambiente.
Capítulo II Disposiciones comunes a determinadas instituciones Artículos L132-1 a
L132-2
Artículo L132-1 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 2º Diario Oficial de 3 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 147 Diario Oficial de 24 de febrero de 2005)
La Agencia de Medio Ambiente y de Control de la Energía, el Conservatorio del Espacio Litoral y de las Riberas Lacustres, las Agencias del Agua y la Caja Nacional de Monumentos y Lugares Históricos tendrán la condición de parte procesal legítima respecto a los hechos que perjudicaran de modo directo o indirecto los intereses cuya defensa y representación les correspondiese y que constituyeran una infracción tanto a las disposiciones legales como a los reglamentos dictados para su aplicación relativos a la protección de la naturaleza y del medio ambiente, a la mejora de la calidad de vida, a la protección del agua, del aire, de los suelos, de los espacios naturales y los paisajes, al urbanismo, o que tuvieran por objeto la lucha contra la contaminación y los daños al medio ambiente.
Sin perjuicio de la indemnización por los demás daños sufridos, las personas jurídicas de derecho público mencionadas en el párrafo anterior que intervinieran de forma material o económica tendrán derecho al reembolso de los gastos que hubieran realizado con cargo a los responsables.
Las Cámaras Agrarias, los Parques Naturales Regionales y los Centros Regionales de la Propiedad Forestal
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CÓDIGO DE MEDIO AMBIENTE tendrán también la condición de parte procesal legítima en las condiciones establecidas anteriormente.
Artículo L132-2 Las organizaciones sindicales agrarias y forestales representativas, así como las Cámaras Agrarias y los Centros
Regionales de la Propiedad Forestal estarán facultados, en el marco de las leyes y demás disposiciones vigentes, para participar en las actuaciones de los poderes públicos en materia de protección medioambiental o de gestión del territorio dirigidas al medio rural.
Título IV Asociaciones de protección del medio ambiente Artículos L141-1 a
L142-3
Capítulo I Autorización de las asociaciones de protección del medio ambiente Artículos L141-1 a
L141-2
Artículo L141-1 (Ley nº 2005-157 de 23 de febrero de 2005 art. 148 Diario Oficial de 24 de febrero de 2005)
Las asociaciones legalmente registradas que llevaran ejerciendo sus actividades estatutarias durante un periodo de al menos tres años en el ámbito de la protección de la naturaleza, la mejora de la calidad de vida, la protección del agua, del aire, de los suelos, de los espacios naturales y paisajes, del urbanismo, o que tuvieran por objeto la lucha contra las contaminaciones y los perjuicios y, en general, aquellas que actuaran principalmente en favor de la protección del medio ambiente, podrán ser autorizadas mediante resolución motivada.
En los departamentos de Bajo Rin, Alto Rin y Moselle, el procedimiento de autorización será de aplicación a las asociaciones que tuvieran al menos tres años de existencia desde su reconocimiento legal.
Estas asociaciones se denominarán "asociaciones autorizadas de protección del medio ambiente". Dicha autorización será concedida en condiciones establecidas por decreto adoptado en Conseil d'Etat. Podrá ser
revocada cuando la asociación dejara de cumplir con las condiciones que justificaron su concesión. Se considerarán autorizadas, según lo dispuesto en el presente artículo, las asociaciones que ejercieran sus
actividades en los ámbitos mencionados en el párrafo primero del presente artículo y que hubieran sido autorizadas con anterioridad al 3 de febrero de 1995.
Las decisiones adoptadas en aplicación del presente artículo podrán ser objeto de un recurso contencioso-administrativo de plena jurisdicción.
Artículo L141-2 Las asociaciones de protección del medio ambiente autorizadas en virtud del artículo L.141-1, así como las
asociaciones mencionadas en el artículo L.433-2, estarán facultadas, en el marco de las leyes y demás disposiciones vigentes, para participar en los procedimientos de los organismos públicos en materia de medio ambiente.
Capítulo II Acciones judiciales de las asociaciones Artículos L142-1 a
L142-3
Artículo L142-1 Toda asociación que tuviera por objeto la protección de la naturaleza y del medio ambiente podrá instar una acción
ante las jurisdicciones administrativas por cualquier actuación contra la misma. Toda asociación de protección del medio ambiente autorizada en virtud del artículo L.141-1 gozará de interés
legítimo para recurrir cualquier decisión administrativa que tuviera una relación directa con su objeto y sus actividades estatutarias y produjera efectos perjudiciales para el medio ambiente en todo o en parte del territorio dentro del cual están autorizadas.
Artículo L142-2 Las asociaciones autorizadas mencionadas en el artículo L.141-2 tendrán la condición de parte procesal legítima
respecto a los hechos que perjudicaran de modo directo o indirecto los intereses cuya defensa y representación les correspondiese y que constituyeran una infracción a las disposiciones legislativas relativas a la protección de la naturaleza y el medio ambiente, a la mejora de la calidad de vida, a la protección del agua, del aire, de los suelos, de los espacios naturales y los paisajes, al urbanismo o que tuvieran por objeto la lucha contra las contaminaciones y los daños, así como a los textos que se hubieran dictado para su aplicación.
Este derecho se reconocerá asimismo, en las mismas condiciones, a las asociaciones legalmente registradas que tuvieran al menos cinco años de existencia legal en la fecha de los hechos y cuyo objeto estatutario fuera la salvaguarda de la totalidad o parte de los intereses citados en el artículo L.211-1, en lo que respecta a los hechos que constituyen una infracción a las disposiciones relativas al agua, o de los intereses citados en el artículo L.511-1 y en lo que respecta a los hechos constitutivos de una infracción a las disposiciones relativas a las instalaciones clasificadas.
Artículo L142-3 En los casos mencionados en el artículo L.142-2, cuando varias personas físicas identificadas hubieran sufrido
daños personales causados por la acción de una misma persona y con un origen común, toda asociación autorizada en virtud del artículo L.141-1 a solicitud de al menos dos de las personas físicas afectadas, podrá incoar en su nombre la
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CÓDIGO DE MEDIO AMBIENTE correspondiente acción de reparación de los daños ante la jurisdicción competente.
El mandato no podrá ser objeto de solicitación. Tendrá que ser otorgado por escrito por cada persona física afectada.
En este caso, toda persona física que hubiera dado su consentimiento para ejercer una acción ante una jurisdicción penal, se considerará que ejerce los derechos reconocidos a la parte civil según lo dispuesto en el Código de Proceso PenaL.No obstante, las comunicaciones y notificaciones serán dirigidas a la asociación.
La asociación que ejerciera una acción judicial en aplicación de lo dispuesto en los párrafos anteriores, podrá constituirse en parte civil ante el juez de instrucción o el juzgado correspondiente a la sede social de la empresa demandada o, en su defecto, del lugar de la primera infracción.
Título V Disposiciones financieras Artículos L151-1 a
L151-2
Capítulo Único Impuesto general sobre actividades contaminantes Artículos L151-1 a
L151-2
Artículo L151-1 (Ley nº 2000-1353 de 30 de diciembre de 2000 art. 37 IV, VII Diario Oficial de 31 de diciembre de 2000 con entrada en vigor el 1 de enero de 2001) (Ley nº 2001-1276 de 28 de diciembre de 2001 de finanzas art. 60 I c Diario Oficial de 29 de diciembre de 2001) (Ley nº 2002-1576 de 30 de diciembre de 2002 de finanzas rectificativa art. 24 I a Diario Oficial de 31 de diciembre de 2002 con entrada en vigor el 1 de enero de 2001)
El ámbito de aplicación del impuesto general sobre actividades contaminantes se establece en el artículo 266 sexies del Código de Aduanas que se transcribe a continuación:
Art. 266 sexies. - I. - Queda establecido un impuesto general sobre actividades contaminantes a cargo de las personas físicas o jurídicas siguientes:
1. Toda persona que explotara una instalación de almacenamiento de residuos domésticos y asimilados o explotara una instalación de eliminación de residuos industriales especiales por incineración, coincineración, almacenamiento, tratamiento fisicoquímico o biológico, cuando tales instalaciones no se utilizaran exclusivamente para los residuos que la empresa produjera;
2. Toda persona que explotara una instalación sujeta a autorización en los términos del libro V (título I) del Código de Medio Ambiente y cuya potencia térmica máxima, en el caso de instalaciones de combustión, o cuya capacidad, en el caso de instalaciones de incineración de desechos domésticos, o en la que el peso de las sustancias mencionadas en el punto 2 del artículo 266 septies que se emitan a lo largo de un año, en el caso de instalaciones no incluidas en las categorías anteriores, sobrepasaran determinados valores límites establecidos por decreto adoptado en Conseil d'Etat;
3. Toda persona que explotaran aeronaves o, en su defecto, los propietarios de las mismas; 4. a. Toda persona que suministrara por primera vez tras su fabricación nacional, o suministrara en el mercado
interior en caso de adquisición intracomunitaria o comercializara lubricantes susceptibles de producir aceites usados; b. El usuario de aceites y preparados lubricantes, diferentes a los citados en el apartado a, que produjeran aceites
usados cuyo vertido en el medio natural estuviera prohibido. 5. Toda persona que suministrara por primera vez tras su fabricación nacional, o suministrara en el mercado
interior tras su compra, importación o fabricación en otro Estado miembro de la Comunidad Europea, o comercializara productos detergentes, incluidos los productos auxiliares para lavado, o productos suavizantes para la ropa regulados respectivamente en el apartado a del punto 4 y en las partidas 34022090, 34029090 y 38091010 a 38099100 de la Nomenclatura Arancelaria;
6. a) Toda persona que suministrara por primera vez tras su fabricación nacional, o suministrara en el mercado interior tras su compra, importación o fabricación en otro Estado miembro de la Comunidad Europea, o comercializara materiales de extracción de cualquier origen cuya presentación natural fuera en forma de semillas, u fueran obtenidos a partir de rocas trituradas o partidas cuyo tamaño mayor fuera inferior o igual a 125 milímetros y cuyas características y usos estuvieran determinados por decreto;
b) Toda persona que extrajera, produjera o introdujera, procedentes de otro Estado miembro de la Comunidad Europea, los materiales mencionados en el apartado a), para su propio consumo;
7. Toda persona que suministrara por primera vez tras su fabricación nacional, o suministrara en el mercado interior tras su compra, importación o fabricación en otro Estado miembro de la Comunidad Europea, o comercializara productos antiparasitarios de uso agrícola o productos asimilados regulados en la partida 3808 de la Nomenclatura Arancelaria cuya comercialización se encontrara autorizada en aplicación de la Ley nº 525 de 2 de noviembre de 1943, relativa a la organización del control de los productos antiparasitarios de uso agrícola y en cuya composición entraran sustancias clasificadas como peligrosas según los criterios definidos en los decretos adoptados para la aplicación del artículo R. 231-51 del Código de Trabajo;
8. a. Toda personara que explotara un establecimiento industrial o comercial, o un establecimiento público de carácter industrial y comercial en el que determinadas instalaciones estuvieran sujetas a autorización en virtud del libro V (título I) del Código de Medio Ambiente;
b. Toda persona que explotara un establecimiento mencionado en el apartado a) cuyas actividades, que figuran en
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CÓDIGO DE MEDIO AMBIENTE una lista establecida por decreto adoptado en Conseil d'Etat previo dictamen del Consejo Superior de Instalaciones Clasificadas, presentaran riesgos particulares para el medio ambiente debido a su naturaleza o volumen.
II. - El impuesto no se aplicará: 1. A las instalaciones de eliminación de residuos industriales especiales exclusivamente destinadas a la
valorización de la materia, ni a las instalaciones de eliminación de residuos exclusivamente destinadas al amianto cemento;
2. a. A las aeronaves con una masa máxima de despegue inferior a 2 toneladas; b. A las aeronaves pertenecientes al Estado o que participan en misiones de protección civil o de lucha contra
incendios; 3. A los productos mencionados en el apartado 6 del punto I del presente artículo procedentes de una operación de
reciclado o que tuvieran un contenido en producto seco de al menos un 97% de óxido de silicio; 4. A los lubricantes, a los productos detergentes, incluidos los productos auxiliares de lavado, a los productos
suavizantes para la ropa, a los materiales de extracción, a los productos antiparasitarios de uso agrícola o a los productos asimilados mencionados en los apartados 5, 6 y 7 del punto I del presente artículo, siempre que el primer suministro tras su fabricación nacional consistiera en un envío directo con destino a un Estado miembro de la Comunidad Europea o en una exportación;
5. A la explotación de instalaciones clasificadas por las empresas inscritas en el Registro central de artesanos. III - Estarán exentas del pago del impuesto mencionado en el punto I, hasta el límite de un 20% de la cantidad
anual total de residuos recibidos por instalación, la recepción de materiales o de residuos inertes. Serán considerados como residuos inertes los residuos no solubles, que no fueran combustibles, ni produjeran reacción física o química alguna, ni fueran biodegradables, ni deterioraran otras materias con las cuales entraran en contacto de forma que pudiera contaminar el medio ambiente o perjudicar la salud humana.
Artículo L151-2 Las demás disposiciones relativas al impuesto general sobre actividades contaminantes mencionado en el artículo
L.151-1 se encuentran enunciadas en los artículos 266 septies y siguientes del Código de Aduanas.
LIBRO II Medios físicos Artículos L211-1 a
L220-2 Título I El agua y los medios acuáticos Artículos L211-1 a
L210-1
Artículo L210-1 (Ley nº 2004-338 de 21 de abril de 2004 art. 1 Diario Oficial de 22 de abril de 2004)
El agua forma parte del patrimonio común de la Nación. Su protección, su valorización y el desarrollo de los recursos utilizables son de interés general, respetando siempre los equilibrios naturales.
El uso del agua pertenece a todos en el marco de las leyes y demás disposiciones así como de los derechos anteriormente establecidos.
Los costes derivados de la utilización del agua, incluyendo los costes que dicha utilización supone para el medio ambiente y los propios recursos hídricos, correrán a cargo de los usuarios teniendo en cuenta las consecuencias sociales, medioambientales y económicas así como las condiciones geográficas y climáticas.
Capítulo I Régimen general y gestión de los recursos hídricos Artículos L211-1 a
L211-1-1
Artículo L211-1 (Ley nº 2005-157 de 23 de febrero de 2005 art. 127 I Diario Oficial de 24 de febrero de 2005) (Ley nº 2005-781 de 13 de julio de 2005 art. 41 Diario Oficial de 14 de julio de 2005)
I. - Lo dispuesto en los capítulos I a VII del presente título tiene por objeto garantizar una gestión equilibrada de los recursos hídricos. Esta gestión equilibrada persigue los siguientes objetivos:
1° La preservación de los ecosistemas acuáticos, de los lugares y de las zonas húmedas; se entenderá por zona húmeda los terrenos, aprovechados o no, inundados habitualmente o impregnados de agua dulce, salada o salobre de forma permanente o temporal, y en cuya vegetación, cuando existiera, predominen las plantas higrófilas durante, por lo menos, una parte del año;
2° La protección de las aguas y la lucha contra toda contaminación por vertido, escorrentía, descarga, depósito directo o indirecto de materias de toda naturaleza y, de manera más general, por todo hecho susceptible de provocar o incrementar la degradación de las aguas al modificar sus características físicas, químicas, biológicas o bacteriológicas, ya se trate de las aguas superficiales, subterráneas o de las aguas del mar dentro de los límites de las aguas territoriales;
3° La restauración de la calidad de estas aguas y su regeneración; 4° El desarrollo y la protección de los recursos hídricos; 5º La valorización del agua como recurso económico y, en especial, para el desarrollo de la producción de
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CÓDIGO DE MEDIO AMBIENTE electricidad de origen renovable, así como la distribución de este recurso.
Por decreto adoptado en Conseil d'Etat se precisarán los criterios que deberán seguirse para la aplicación del apartado 1°.
II. - La gestión equilibrada deberá permitir satisfacer o conciliar, en sus diferentes usos, actividades o trabajos, las siguientes exigencias:
1° La salud, la salubridad pública, la seguridad civil y el abastecimiento de agua potable a la población; 2° La vida biológica del medio receptor y, especialmente, la fauna piscícola; 3° La conservación y la libre circulación de las aguas, así como la protección contra las inundaciones; 4° La agricultura, la pesca y los cultivos marinos, la pesca en agua dulce, la industria, la producción de energía, los
transportes, el turismo, la protección de los espacios naturales, las actividades de recreo y los deportes náuticos, así como también de cualquier otra actividad humana ejercida legalmente.
Artículo L211-2 I. - Las normas generales de preservación de la calidad y de distribución de las aguas superficiales, subterráneas
así como de las aguas marinas dentro de los límites de las aguas territoriales se determinarán por decreto adoptado en Conseil d'Etat.
II. - Estas normas generales definirán: 1° Las normas de calidad y las medidas necesarias para la restauración y la preservación de esta calidad, en
función de los distintos usos del agua y de su acumulación; 2° Las normas de distribución de las aguas, con objeto de conciliar los intereses de las diversas categorías de
usuarios; 3° Las condiciones en las cuales se podrá: a) Prohibir o regular el vertido, la escorrentía, la descarga, el depósito directo o indirecto de agua o materia y, de
manera más general, todo hecho susceptible de alterar la calidad de las aguas y del medio acuático; b) Prescribir las medidas necesarias para preservar esta calidad y garantizar la vigilancia de los pozos y sondeos
en explotación o sin actividad; 4° Las condiciones en las cuales se podrá prohibir o regular la venta y la distribución de productos o dispositivos
susceptibles de ocasionar perjuicios a la calidad del medio acuático; 5° Las condiciones en las cuales el servicio encargado de ejercer las funciones de policía de aguas, de los vertidos
o de la actividad correspondiente, realizará los controles técnicos de las instalaciones, obras u operaciones y las condiciones en las cuales el coste de dichos controles podrá ser sufragado por la persona que dirija la explotación, el propietario o el responsable de la dirección de las operaciones en caso de no observarse las disposiciones reglamentarias. Cuando los controles de los vertidos de sustancias de cualquier naturaleza, incluidas las radiactivas, no fueran realizados por laboratorios públicos, solamente podrán efectuarlos aquellos laboratorios que estuvieran autorizados.
Artículo L211-3 (Ley nº 2005-157 de 23 de febrero de 2005 art. 128 I Diario Oficial de 24 de febrero de 2005)
I. - Complementariamente a las normas generales mencionadas en el artículo L. 211-1 y con el fin de garantizar la protección de los principios mencionados en el artículo L. 211-1, se establecerán normas nacionales o específicas para determinadas partes del territorio mediante decretos adoptados en Conseil d'Etat.
II.- Estos decretos determinarán en especial las condiciones en las que la autoridad administrativa podrá: 1° Adoptar medidas de limitación o suspensión provisional del uso de las aguas para hacer frente a una amenaza o
a las consecuencias de accidentes, de sequía e inundaciones, o a un riesgo de escasez; 2° Promulgar, respetando el equilibrio general de los derechos y obligaciones que se deriven de concesiones de
servicio público otorgadas por el Estado, las normas especiales aplicables a las instalaciones, obras y actividades que utilicen las aguas o modifiquen su nivel o su curso, así como las condiciones en las cuales se podrán prohibir o regular toda clase de sondeos, captaciones de agua, embalses, obras o instalaciones de vertido, especialmente en las zonas de protección de los recursos, que fueran declaradas de utilidad pública para el aprovisionamiento actual y futuro de agua potable;
3° Determinar las disposiciones especiales aplicables a las fuentes y yacimientos de aguas minerales naturales y a su protección.
4º Dentro de las zonas húmedas definidas en el artículo L. 211-1: a) Delimitar zonas denominadas "zonas de especial interés medioambiental" cuya conservación o restauración
presentara un interés particular para la gestión integrada de la cuenca hidrográfica, o un notable valor turístico, ecológico, paisajístico o cinegético. Estas zonas podrán englobar las zonas húmedas denominadas "zonas estratégicas para la gestión del agua" previstas en el artículo L. 212-5;
b) Establecer, en coordinación principalmente con las entidades territoriales y sus agrupaciones, los representantes de los propietarios o sus agrupaciones, los titulares de explotación de los terrenos o sus representantes, las asociaciones autorizadas de protección de la naturaleza, las federaciones de las asociaciones autorizadas de pesca, las federaciones de cazadores, las asociaciones autorizadas de pescadores profesionales, reunidos en comité de gestión de la zona húmeda y bajo la égida de la Comisión Local del Agua, cuando existiera, un programa de acciones destinadas a restaurar, conservar, gestionar y revalorizar de manera duradera las zonas definidas en la letra a).
c) Precisar en dicho programa las prácticas a desarrollar y los medios preconizados para permitir su generalización, conferir un carácter obligatorio a algunas de estas prácticas y precisar las modalidades con arreglo a las cuales las mismas pueden, en su caso, beneficiarse de ayudas cuando tuvieran como consecuencia costes adicionales
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CÓDIGO DE MEDIO AMBIENTE o pérdidas de ingresos.
Artículo L211-4 Las autoridades competentes del Estado podrán establecer normas que regulen la calidad de las aguas en
determinadas zonas de los mares y océanos, de las lagunas de agua salada, de los estuarios y de los deltas hasta el límite de salinidad de las aguas, en función de su contribución a las actividades de explotación y de valorización de los recursos biológicos de esas zonas.
Estas actividades podrán ser reguladas o prohibidas en función de dichas normas de calidad. Esta disposición se aplicará igualmente a la comercialización de los productos vegetales o animales procedentes de esas aguas y destinados al consumo humano.
Artículo L211-5 Toda persona que tuvieran constancia de cualquier incidente o accidente que constituyera un peligro para la
seguridad civil y la calidad, circulación o conservación de las aguas, deberá informar de ello sin demora al Prefecto y al Alcalde interesados.
Tan pronto como tuvieran conocimiento del incidente o accidente, la persona que lo hubiera originado y el responsable de la explotación o, cuando éste no existiera, el propietario, tomarán o solicitarán que se adopten todas las medidas posibles para poner fin a la causa del peligro o de los daños producidos al medio acuático, valorar las consecuencias del incidente o accidente y proceder a remediarlas.
El Prefecto podrá ordenar a las personas anteriormente mencionadas las medidas necesarias para poner fin al daño causado o circunscribir su gravedad y, en particular, los estudios a realizar.
En caso de incumplimiento, y siempre que existiera un riesgo de contaminación o destrucción del medio natural, o para la salud pública y el abastecimiento de agua potable, el Prefecto podrá tomar u ordenar que se adopten las medidas necesarias por cuenta y riesgo de las personas responsables.
El Prefecto y el Alcalde interesados informarán a la población por todos los medios apropiados de las circunstancias del incidente o accidente, de sus efectos previsibles y de las medidas tomadas para remediarlas.
Los agentes de los servicios públicos de lucha contra incendios y de protección civil tendrán acceso a las propiedades privadas para poner fin a las causas del peligro o daños producidos al medio acuático y prevenir o limitar las consecuencias del incidente o accidente.
Sin perjuicio de la indemnización por los demás daños sufridos, las personas jurídicas de derecho público que intervinieran material o financieramente tendrán derecho a que les sean reembolsados los gastos realizados por las personas con responsabilidad en el incidente o accidente. En este caso, podrán constituirse en parte civil ante las jurisdicciones penales competentes de las acciones judiciales incoadas como consecuencia del incidente o accidente.
Artículo L211-6 Las decisiones adoptadas en aplicación del artículo L.211-5 podrán ser objeto de un recurso
contencioso-administrativo en las condiciones previstas en el artículo L.514-6.
Artículo L211-7 (Ley nº 2003-699 de 30 de julio de 2003 art. 55 II Diario Oficial de 31 de julio de 2003)
Sin perjuicio del cumplimiento de las disposiciones de los artículos 5 y 25 del Código del Dominio Público Fluvial y de la Navegación Interior, las entidades territoriales y sus agrupaciones, así como las comunidades de entidades administrativas mixtas creadas según lo dispuesto en el artículo L.5721-2 del Código General de Entidades Territoriales y la entidad local del agua, estarán facultados para utilizar el procedimiento mencionado en los artículos L.151-36 a L.151-40 del Código Rural a fin de emprender el estudio, la ejecución y la explotación de toda clase de obras, actuaciones, construcciones e instalaciones que presenten un carácter de interés general o de urgencia, en el marco del plan de ordenación y gestión de las aguas, cuando así existiera, y cuyo propósito fuera:
1° El acondicionamiento de una cuenca o de una parte de cuenca hidrográfica; 2° El mantenimiento y el acondicionamiento de un curso de agua, canal, lago o laguna y embalse, incluyendo los
accesos a dicho curso de agua, canal, lago o laguna y embalse; 3° El aprovisionamiento de agua; 4° El control de las aguas pluviales y de escorrentía superficial o la lucha contra la erosión de los suelos; 5° La defensa contra las inundaciones y el mar; 6° La lucha contra la contaminación; 7° La protección y la conservación de las aguas superficiales y subterráneas; 8° La protección y la restauración de los espacios naturales, de los ecosistemas acuáticos y de las zonas húmedas,
así como de las formaciones arboladas ribereñas; 9° Las obras hidráulicas que contribuyan a la seguridad civil; 10° La explotación, el mantenimiento y el acondicionamiento de las estructuras hidráulicas existentes; 11° La creación y explotación de dispositivos de vigilancia de los recursos hídricos y de los medios acuáticos; 12° La promoción y la concertación en el ámbito de la gestión y de la protección de los recursos hídricos y de los
medios acuáticos en una subcuenca o una agrupación de subcuencas, o en un sistema acuífero, correspondiente a una unidad hidrográfica.
I bis. - Cuando un proyecto citado en los apartados 1º, 2º y 5º del punto I que sobrepase un tope financiero establecido por decreto esté situado dentro del perímetro de una entidad pública territorial citada en el artículo L.213-10, el Prefecto lo someterá al presidente de dicha entidad para su aprobación. A falta de respuesta en el plazo de dos meses, se considerará que la aprobación ha sido concedida.
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CÓDIGO DE MEDIO AMBIENTE II. - El estudio, la ejecución y la explotación de dichas obras podrán ser concedidos en particular a sociedades de
economía mixta. Los concesionarios estarán autorizados a percibir el precio de las participaciones previstas en el artículo L.151-36 del Código Rural.
III. - Se procederá a una única consulta pública en virtud del artículo L.151-37 del Código Rural, de los artículos L.214-1 a L.214-6 del presente Código y, si procediera, de la declaración de utilidad pública.
IV. - Sin perjuicio de lo acordado por sentencia judicial con fuerza de cosa juzgada, las servidumbres de libre paso para los artefactos de mantenimiento en el cauce o las márgenes de los cursos de agua de dominio privado, constituidas en aplicación del decreto nº 59-96 de 7 de enero de 1959 relativo a las servidumbres de paso sobre las márgenes de los cursos de agua no navegables ni flotables, serán admitidas con el valor de servidumbres en el sentido del artículo L.151-37-1 del Código Rural.
V. - Lo dispuesto en el presente artículo se aplicará a las obras, actuaciones, construcciones o instalaciones del Estado.
VI. - Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente artículo.
Artículo L211-8 En caso de sequía grave que ponga en peligro el abastecimiento de agua potable de las poblaciones, una vez
comprobada ésta por el Ministro competente en materia de policía de aguas y previa consulta con el titular de la explotación, el Prefecto podrá ordenar, si fuere necesario, excepciones temporales a las disposiciones que establecen los caudales reservados para las empresas hidráulicas en las cuencas vertientes afectadas, sin que ello dé lugar al pago de indemnizaciones.
Artículo L211-9 Un decreto adoptado en Conseil d'Etat determinará las condiciones en las cuales se podrán imponer las medidas a
tomar para la construcción y el mantenimiento de las redes e instalaciones públicas y privadas a fin de evitar el mal uso del agua.
Artículo L211-10 No obstante las disposiciones del artículo 134 del Código de Minería, las muestras, documentos e informaciones
de interés para la investigación, la producción o el régimen de las aguas subterráneas pasarán inmediatamente al dominio público.
Artículo L211-11 Las disposiciones especiales relativas a la calidad de las aguas destinadas al consumo humano se encuentran
recogidas en el Código de Salud Pública (Parte Primera, libro III, título II, capítulos I, II y IV). Las disposiciones relativas a las aguas de baño están recogidas en el mismo código (Parte Primera, libro III, título
III, capítulo II y artículo L.1336-1).
Artículo L211-12 (Ley nº 2003-699 de 30 de julio de 2003 art. 48 Diario Oficial de 31 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 132 II, III, IV Diario Oficial de 24 de febrero de 2005)
I. - A petición del Estado, de las entidades territoriales y de sus agrupaciones, se podrán constituir servidumbres de utilidad pública en los terrenos ribereños de un curso de agua o de la derivación de un curso de agua, o en los terrenos situados en su cuenca vertiente o en una zona de estuario.
II. - Dichas servidumbres podrán tener al menos uno de los siguientes objetivos: 1° Crear zonas de retención temporal de las aguas de crecidas o de escorrentía superficial, mediante obras
hidráulicas que permitan incrementar artificialmente la capacidad de almacenamiento de esas aguas, a fin de reducir las crecidas o las escorrentías superficiales en sectores situados aguas abajo;
2° Crear o restaurar zonas de movilidad del cauce menor de un curso de agua, aguas arriba de las zonas urbanizadas situadas en zonas llamadas "zonas de movilidad de un curso de agua" a fin de preservar o de restaurar sus caracteres hidrológicos y geomorfológicos esenciales.
3º Conservar o restaurar zonas húmedas denominadas "zonas estratégicas para la gestión del agua", definidas en aplicación del artículo L. 212-5.
III. - Por orden prefectoral se determinará las zonas sujetas a las servidumbres citadas en los apartados 1° y 2° del punto II. Dicha orden será aprobada tras una consulta pública llevada a cabo de conformidad con el Código de Expropiación por Causa de Utilidad Pública. Las zonas sujetas a las servidumbres citadas en el apartado 3° del punto II se determinarán con arreglo a lo dispuesto en el artículo L. 212-5
IV. - En las zonas de retención temporal de las aguas de crecidas o de escorrentía superficial mencionadas en el apartado 1º del punto II, la orden prefectoral podrá obligar a los propietarios y a los responsables de las explotaciones a abstenerse de todo acto que pudiera perjudicar el buen funcionamiento, el mantenimiento y la conservación de las obras e instalaciones destinadas a permitir la inundación de la zona. A estos efectos, la orden prefectoral podrá someter a declaración previa ante las autoridades competentes en materia de urbanismo, las obras que, por su naturaleza, su importancia o su localización, sean susceptibles de obstaculizar el almacenamiento o la escorrentía de las aguas y que no estén dentro del ámbito de aplicación de las autorizaciones o declaraciones previstas por el Código de Urbanismo.
La orden prefectoral podrá asimismo someter a declaración previa las construcciones que por su naturaleza, su importancia o su localización, sean susceptibles de obstaculizar el almacenamiento o la escorrentía de las aguas y que no estén dentro del ámbito de aplicación de las autorizaciones o declaraciones establecidas por el Código de
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CÓDIGO DE MEDIO AMBIENTE Urbanismo. En el plazo de dos meses a partir de la recepción de la declaración, el Prefecto podrá oponerse, mediante resolución motivada, a la ejecución de estas construcciones u ordenar las obras necesarias. Las obras para la ejecución de dichas construcciones no podrán comenzar hasta la expiración de dicho plazo.
Para las obras citadas en el párrafo primero del presente punto IV, así como para las obras y construcciones sujetas a una autorización o a una declaración contemplada por el Código de Urbanismo y que, por su naturaleza, su importancia o su localización, sean susceptibles de obstaculizar el almacenamiento o la escorrentía de las aguas, la autoridad competente en materia de urbanismo solicitará el acuerdo del Prefecto, quien dispondrá de un plazo de dos meses a partir de la recepción de la declaración o de la solicitud de autorización para oponerse a la ejecución de las obras u ordenar las modificaciones necesarias. Las obras no podrán comenzar hasta la expiración de dicho plazo.
Además, la orden prefectoral determinará las disposiciones necesarias dentro de un plazo determinado para evacuar toda embarcación móvil que pudiera sufrir o provocar daños.
V. - En las "zonas de movilidad de un curso de agua" mencionadas en el apartado 2º del punto II, no se podrá realizar obras de protección de las márgenes, obras de terraplenado, de excavación, diques de contención, ni construcciones o instalaciones ni, en general, obra alguna o construcción susceptible de obstaculizar el desplazamiento natural del curso de agua. A estos efectos, la orden prefectoral podrá someter a declaración previa ante las autoridades competentes en materia de urbanismo, las obras que, por su naturaleza, su importancia o su localización, sean susceptibles de obstaculizar el desplazamiento natural del curso de agua y no entren en el ámbito de aplicación de las autorizaciones o declaraciones establecidas en el Código de Urbanismo.
Asimismo, la orden prefectoral podrá someter a declaración previa las construcciones que, por su naturaleza, su importancia o su localización, fueran susceptibles de obstaculizar el desplazamiento natural del curso de agua y no entraran en el ámbito de aplicación de las autorizaciones o declaraciones establecidas en el Código de Urbanismo. En el plazo de dos meses a partir de la recepción de la declaración, el Prefecto podrá oponerse, mediante resolución motivada, a la ejecución de estas construcciones u ordenar las obras necesarias. Las obras para la ejecución de dichas construcciones no podrán comenzar hasta la expiración de dicho plazo.
Para las obras contempladas en el párrafo primero del presente punto V, así como para las obras y construcciones sujetas a una autorización o a una declaración prevista por el Código de Urbanismo y que, por su naturaleza, su importancia o su localización, fueran susceptibles de obstaculizar el desplazamiento natural del curso de agua, la autoridad competente en materia de urbanismo solicitará el acuerdo del Prefecto, quien dispondrá de un plazo de dos meses a partir de la recepción de la declaración o de la solicitud de autorización para oponerse a la ejecución de las obras u ordenar las modificaciones necesarias. Las obras no podrán comenzar hasta la expiración de dicho plazo.
V bis - En las zonas húmedas denominadas "zonas estratégicas para la gestión del agua" mencionadas en el apartado 3° del punto II, por orden prefectoral se podrá obligar a los propietarios y los responsables de las explotaciones a abstenerse de todo acto que pudiera perjudicar la naturaleza, funciones, mantenimiento y conservación de la zona, como por ejemplo el drenaje, el terraplenado o la roturación de praderas.
VI. - La orden prefectoral podrá identificar, en su caso, los elementos presentes o ausentes que obstaculicen el propósito de la servidumbre y cuya eliminación, modificación o constitución sea obligatoria. El coste financiero de las obras y la indemnización por el perjuicio que pudiera resultar de estas últimas corresponderán a la entidad que hubiera solicitado la constitución de la servidumbre. Sin embargo, si estos elementos pertenecieran al Estado o a organismos públicos, el coste de las obras corresponderá a los mismos.
VII. - Cuando una de las finalidades para las cuales se hubiera constituido la servidumbre implicara la realización de instalaciones, obras o actividades por parte de la entidad pública, los propietarios y responsables de las explotaciones tendrán que permitir en cualquier momento al personal encargado de su acondicionamiento, mantenimiento o explotación, el acceso a los terrenos incluidos dentro de las zonas sujetas a servidumbre.
VIII. - La constitución de las servidumbres mencionadas en el punto I dará derecho a las correspondientes indemnizaciones en beneficio de los propietarios de terrenos de las zonas gravadas cuando causaran un perjuicio material, directo y real. Estas indemnizaciones correrán a cargo de la entidad que hubiera solicitado la constitución de la servidumbre. Si no hubiera acuerdo amistoso, las mismas serán fijadas por el juez competente para la expropiación en el correspondiente departamento.
IX. - Los daños materiales causados a las cosechas, los cultivos, la maquinaria y utillaje agrícola, el ganado, los vehículos terrestres a motor y los edificios, por un exceso de inundaciones vinculado a una retención temporal de las aguas en las zonas gravadas con servidumbres mencionadas en el punto II, darán derecho a indemnizaciones para los ocupantes. No obstante, las personas físicas o jurídicas que hubieran contribuido por su actuación o por su negligencia a la producción de daños, estarán excluidas del beneficio de la indemnización de forma proporcional a los daños que se les pudiera imputar. Estas indemnizaciones correrán a cargo de la entidad que hubiera solicitado la constitución de la servidumbre que grava la zona.
Los daños que afecten a las cosechas, a los cultivos, a los edificios, a la maquinaria y utillaje agrícola y al ganado pertenecientes a explotaciones agrícolas serán valorados en el marco de protocolos de acuerdos locales. En ausencia de estos protocolos, serán calculados en las condiciones establecidas en el artículo L. 361-10 del Código Rural.
X. - Durante un periodo de diez años a partir de la fecha de publicación de la orden prefectoral que haga constar la finalización de las obras mencionadas en el punto VI o, si tales obras no fueran necesarias, a partir de la fecha de publicación de la orden prefectoral que establece una o varias de las servidumbres mencionadas en el punto I, el propietario de una parcela de terreno gravada por una de estas servidumbres podrá instar su adquisición parcial o total por la entidad que hubiera solicitado la constitución de la servidumbre. Este derecho de abandono se ejercerá en las condiciones establecidas en los artículos L. 230-1 y siguientes del Código de Urbanismo. El propietario podrá instar, al mismo tiempo, la adquisición parcial o total de otras parcelas de terreno siempre que la existencia de la servidumbre
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CÓDIGO DE MEDIO AMBIENTE comprometa su explotación o su uso en condiciones similares a las que existían previamente a la constitución de la servidumbre.
XI. - En las zonas mencionadas en el punto II, los municipios o las entidades públicas de cooperación intermunicipal competentes podrán ejercer el derecho de tanteo y retracto sobre los terrenos acogidos a un plan de urbanismo en las condiciones establecidas en el artículo L. 211-1 del Código de Urbanismo. Podrán delegar este derecho en la entidad que hubiera solicitado la constitución de la servidumbre.
XII. - Por decreto adoptado en Conseil d'Etat se determinarán las condiciones de aplicación del presente artículo.
Artículo L211-13 (Ley nº 2003-699 de 30 de julio de 2003 art. 53 Diario Oficial de 31 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 132 V, VI, VII, VIII Diario Oficial de 24 de febrero de 2005)
I. - Salvo disposición en contrario, el Estado, las entidades territoriales o sus agrupaciones que hubieran adquirido terrenos situados en las zonas de retención temporal de las aguas de crecidas o de escorrentía superficial, o en las zonas de movilidad de un curso de agua citadas en el artículo L. 211-12 del presente Código podrán, en el momento de la renovación de los arrendamientos rústicos contemplados en el título I del libro IV del Código Rural relativo a estos terrenos, imponer al arrendatario determinados modos de utilización del suelo a fin de prevenir las inundaciones y no agravar los daños potenciales.
I bis. - Salvo disposición en contrario, el Estado, las entidades territoriales o sus agrupaciones, que hubieran adquirido terrenos situados en las zonas estratégicas para la gestión del agua mencionadas en el artículo L. 211-12 podrán, en el momento del establecimiento o de la renovación de los arrendamientos rústicos contemplados en el título I del libro IV del Código Rural relativo a estos terrenos, imponer al arrendatario determinados modos de utilización del suelo a fin de conservar o restaurar su naturaleza y sus funciones.
II. - Por excepción a lo dispuesto en el título I del libro IV del Código Rural, el tribunal administrativo será el único competente para resolver los litigios correspondientes a los arrendamientos formalizados o renovados según lo dispuesto en los puntos I y Ibis.
Artículo L211-1-1 (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 127 Diario Oficial de 24 de febrero de 2005)
La conservación y la gestión sostenible de las zonas húmedas definidas en el artículo L. 211-1 son de interés general. Las políticas nacionales, regionales y locales de ordenación del territorio rural y la concesión de ayudas públicas tendrán en cuenta las dificultades específicas de conservación, explotación y gestión sostenible de las zonas húmedas así como su contribución a las políticas de conservación de la diversidad biológica, del paisaje, de gestión de los recursos hídricos y de prevención de las inundaciones principalmente mediante actividades de agricultura, pastoreo, silvicultura, caza, pesca y turismo adaptadas. A este efecto el Estado y sus organismos públicos, las regiones, los departamentos, los municipios y sus agrupaciones garantizarán, cada cual en su ámbito de competencia, la coherencia entre las diferentes políticas públicas en dichos territorios. Para la aplicación del punto X del artículo L. 212-1, el Estado velará por que se tenga en cuenta esta coherencia en los planes de ordenación y gestión de las aguas.
Capítulo II Planificación Artículos L212-1 a
L212-7
Sección I Planes directores de ordenación y gestión de las aguas Artículos L212-1 a
L212-2-3
Artículo L212-1 (Ley nº 2004-338 de 21 de abril de 2004 art. 2 Diario Oficial de 22 de abril de 2004) (Ley nº 2005-781 de 13 de julio de 2005 art. 43 Diario Oficial de 14 de julio de 2005)
I. - La autoridad administrativa delimitará el ámbito de intervención de las cuencas o agrupaciones determinando las masas de agua subterráneas y las aguas marinas interiores y territoriales que dependerán de las mismas.
II. - En cada cuenca o agrupación de cuencas, el Comité de Cuenca competente asumirá las siguientes funciones: 1º El análisis de sus características y del impacto de las actividades sobre el estado de los recursos hídricos, así
como el análisis económico de los usos del agua, debiéndose reexaminar dichos análisis periódicamente; 2º El establecimiento y la actualización periódica de uno o varios registros en los que figurarán: - las zonas sujetas a disposiciones legales o reglamentarias especiales en aplicación de la legislación comunitarias
específica relativa a la protección de las aguas superficiales y subterráneas o la conservación de los hábitats o de las especies directamente dependientes del agua;
- las zonas de captaciones de agua, actuales o futuras, destinadas al abastecimiento de agua potable. III. - Cada cuenca o agrupación de cuenca hidrográfica estará dotada de uno o varios planes directores de
ordenación y gestión de las aguas que fijarán las orientaciones básicas de una gestión equilibrada de los recursos hídricos, tal como lo prevé el artículo L. 211-1, así como objetivos en términos de cantidad y calidad. El plan tendrá en cuenta la evaluación, por zona geográfica, del potencial hidroeléctrico establecido según lo dispuesto en el punto I del artículo 6 de la Ley n° 2000-108 de 10 de febrero de 2000, relativa a la modernización y el desarrollo del servicio público de electricidad.
IV. - Los objetivos de calidad y cantidad de los recursos hídricos fijados por los planes directores de ordenación y
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CÓDIGO DE MEDIO AMBIENTE gestión de las aguas serán los siguientes:
1º Respecto de las aguas superficiales, con excepción de las masas de agua artificiales o fuertemente modificadas por las actividades humanas, un buen estado ecológico y químico;
2º Respecto de las masas de aguas artificiales o fuertemente modificadas por las actividades humanas, un buen potencial ecológico y un buen estado químico;
3º Respecto de las masas de agua subterráneas, un buen estado químico y un equilibrio entre las extracciones realizadas y la capacidad de realimentación de dichas masas;
4º La prevención del deterioro de la calidad de las aguas; 5º Las exigencias específicas establecidas para las zonas citadas en el apartado 2° del punto II, especialmente
aquellas cuyo objetivo es reducir el tratamiento necesario para la producción de agua destinada al consumo humano. V. - Los objetivos citados en el punto IV deberán alcanzarse a más tardar el 22 de diciembre de 2015. No obstante,
si por razones técnicas, financieras o relacionadas con las condiciones naturales, no se pudiera alcanzar dentro de dicho plazo los objetivos mencionados en los apartados 1°, 2°, 3° del punto IV, el plan director de ordenación y gestión de las aguas podrá ampliarlo mediante decisión motivada, sin que la prórroga pueda exceder de un periodo correspondiente a dos actualizaciones del plan director de ordenación y gestión de las aguas.
VI. - Cuando resultara imposible alcanzar los objetivos citados en los apartados 1°, 2° y 3° del punto IV, o cuando estos supusieran un coste desproporcionado en relación con los beneficios esperados, el plan director de ordenación y gestión de las aguas podrá fijar objetivos especiales mediante decisión motivada.
VII. - Mediante decisión motivada y siempre que las características físicas de las aguas o el ejercicio de nuevas actividades humanas lo justifiquen, se podrán introducir excepciones en el cumplimiento de los objetivos mencionados en los apartados 1° a 4° del punto IV y en el punto V, con arreglo a las condiciones establecidas por el decreto citado en el punto XIII.
VIII. - El plan director de ordenación y gestión de las aguas indicará las modalidades de participación de los usuarios en los costes derivados de la utilización del agua, diferenciando en su tratamiento, como mínimo, el sector industrial, el sector agrícola y el uso doméstico. Dichas modalidades serán reexaminadas con ocasión de las actualizaciones del plan director.
IX. - El plan director determinará las medidas y disposiciones necesarias para prevenir el deterioro y garantizar la protección y mejora del estado de las aguas y medios acuáticos, con el objeto de alcanzar y cumplir los objetivos de calidad y cantidad mencionados en los puntos IV a VI.
X. - El plan director de ordenación y gestión de las aguas determinará aquellas aguas marítimas interiores y territoriales, y aquellas subcuencas o agrupaciones de subcuencas que debieran estar sujetas a un plan de ordenación y gestión de las aguas en aplicación del artículo L. 212-3, con el objeto de respetar las orientaciones básicas y los objetivos fijados en aplicación de lo dispuesto en el presente artículo. El plan director fijará asimismo el plazo dentro del cual se deberá elaborar y revisar dicho plan de ordenación y gestión de las aguas. En su defecto, la autoridad administrativa establecerá de oficio el ámbito de intervención y el plazo arriba mencionados, con arreglo a las condiciones previstas en el artículo L. 212-3.
XI. - Los programas y las decisiones administrativas en el ámbito del agua deberán ser compatibles o compatibilizarse con las disposiciones de los planes directores de ordenación y gestión de las aguas.
XII. - En el caso de cuencas o agrupaciones de cuencas cuyo ámbito de intervención se extendiera más allá de la frontera nacional, tanto la delimitación prevista en el punto I como los objetivos mencionados en el punto IV y las disposiciones citadas en el punto IX, deberán establecerse en coordinación con las autoridades extranjeras competentes.
XIII. - Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente artículo.
Artículo L212-2 (Ley nº 2004-338 de 21 de abril de 2004 art. 3 Diario Oficial de 22 de abril de 2004)
I. - El Comité de Cuenca competente en cada cuenca o agrupación de cuencas elaborará, revisará y efectuará el seguimiento de la aplicación de los planes directores de ordenación y gestión de las aguas.
II. - El Comité de Cuenca recabará la opinión de los ciudadanos sobre el proyecto de plan director de ordenación y gestión de las aguas.
A continuación someterá el proyecto, eventualmente modificado en función de la opinión de los ciudadanos, al dictamen de los Consejos Regionales, de los Consejos Generales, de las entidades públicas territoriales de cuenca y de las cámaras profesionales correspondientes. Se considerará que dichos dictámenes son favorables transcurrido el plazo de cuatro meses a partir de la recepción del proyecto sin pronunciamiento expreso. El Comité de Cuenca podrá modificar el proyecto para tener en cuenta los dictámenes emitidos.
III. - El plan director de ordenación y gestión de las aguas será adoptado por el Comité de Cuenca y aprobado por la autoridad administrativa. Se pondrá a disposición pública.
IV. - Será actualizado cada seis años. V. - Por decreto adoptado en Conseil d'Etat se precisarán las condiciones de aplicación del presente artículo. Se
determinarán las condiciones en las que la autoridad administrativa podrá sustituir al Comité de Cuenca en sus funciones cuando se considerara que el mismo no está en condiciones de llevar a cabo dichas funciones dentro del plazo previsto, así como el procedimiento que en tal caso se debiera seguir.
Artículo L212-2-1 (Introducido por la Ley nº 2004-338 de 21 de abril de 2004 art. 4 Diario Oficial de 22 de abril de 2004)
La autoridad administrativa elaborará y actualizará periódicamente, respecto de cada cuenca o agrupación de
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CÓDIGO DE MEDIO AMBIENTE cuencas, un programa plurianual con las medidas destinadas a cumplir los objetivos y las disposiciones del plan director de ordenación y gestión de las aguas. Dicho programa y sus actualizaciones periódicas serán sometidos a la aprobación del Comité de Cuenca.
Artículo L212-2-2 (Introducido por la Ley nº 2004-338 de 21 de abril de 2004 art. 4 Diario Oficial de 22 de abril de 2004)
Previo dictamen del Comité de Cuenca, la autoridad administrativa elaborará y actualizará periódicamente, respecto de cada cuenca o agrupación de cuencas, un programa de vigilancia del estado de las aguas.
Artículo L212-2-3 (Introducido por la Ley nº 2004-338 de 21 de abril de 2004 art. 4 Diario Oficial de 22 de abril de 2004)
En el caso de cuencas o agrupaciones de cuencas cuyo ámbito de intervención se extendiera más allá de la frontera nacional, la autoridad administrativa elaborará los programas previstos en los artículos L. 212-2-1 y L. 212-2-2, en coordinación con las autoridades extranjeras competentes.
Sección II Planes de ordenación y gestión de las aguas Artículos L212-3 a
L212-7
Artículo L212-3 En una subcuenca o una agrupación de subcuencas correspondiente a una unidad hidrográfica o a un sistema
acuífero, un plan de ordenación y gestión de las aguas fijará los objetivos generales de utilización, aprovechamiento y protección cuantitativa y cualitativa de las aguas superficiales y subterráneas y de los ecosistemas acuáticos, así como de preservación de las zonas húmedas, de conformidad con los principios enumerados en el artículo L.211-1.
Su perímetro estará determinado por el plan director mencionado en el artículo L.212-1 y, en su defecto, será establecido por el Prefecto, previa consulta o a propuesta de las entidades territoriales y tras haber consultado al Comité de cuenca.
Artículo L212-4 I. - Se creará una Comisión Local del Agua por el Prefecto para la elaboración, la revisión y el seguimiento de la
aplicación del plan de ordenación y gestión de las aguas. II. - Esta Comisión integrará: 1° En su mitad, a representantes de las entidades territoriales y de las entidades públicas locales, quienes
nombrarán a su presidente entre los miembros de la Comisión; 2° En una cuarta parte, a representantes de los usuarios, de los propietarios ribereños, de las organizaciones
profesionales y de las asociaciones interesadas. Estas asociaciones deberán estar registradas legalmente desde, por lo menos, cinco años antes de la fecha de creación de la Comisión y tener como objetivo, de conformidad con sus estatutos, salvaguardar total o parcialmente los principios contemplados en el artículo L.211-1;
3° En la cuarta parte restante, a representantes del Estado y de sus entidades públicas.
Artículo L212-5 (Disposición nº 2004-632 de 1 de julio de 2004 art. 61 III Diario Oficial de 2 de julio de 2004) (Ley nº 2005-157 de 23 de febrero de 2005 art. 132 I Diario Oficial de 24 de febrero de 2005) (Ley nº 2005-781 de 13 de julio de 2005 art. 43 Diario Oficial de 14 de julio de 2005)
El plan de ordenación y gestión de las aguas contendrá un análisis del estado de los recursos hídricos y del medio acuático. En el mismo figurarán los distintos usos de los recursos hídricos existentes.
Tendrá en consideración los documentos de orientación y los programas del Estado, de las entidades territoriales y de sus agrupaciones, de las comunidades de entidades administrativas mixtas, de las entidades públicas, de las demás personas jurídicas de derecho público, así como también de las sociedades de economía mixta y las comunidades libres de propietarios contempladas en la Disposición n° 2004-632 de 1 de julio de 2004 relativa a las comunidades de propietarios, que tengan incidencias en la calidad, la distribución o la utilización de los recursos hídricos. El plan tendrá asimismo en cuenta, para cada zona geográfica, el potencial hidroeléctrico establecido según lo dispuesto en el punto I del artículo 6 de la Ley n° 2000-108 de 10 de febrero de 2000 antes citada.
Determinará a continuación las prioridades a tener en consideración para alcanzar los objetivos definidos en el artículo L. 212-3, teniendo siempre presente la protección del medio natural acuático, las necesidades de aprovechamiento de los recursos hídricos, la evolución previsible del espacio rural, el entorno urbano y económico y el necesario equilibrio entre los distintos usos del agua. Valorará los medios económicos y financieros necesarios para su puesta en práctica.
Podrá delimitar, a efectos de conservación y restauración, zonas húmedas denominadas "zonas estratégicas para la gestión del agua", situadas dentro de las zonas húmedas definidas en el artículo L. 211-1 y que contribuyan de forma significativa a la protección de los recursos de agua potable o al cumplimiento de los objetivos de buen estado de las aguas del plan de ordenación y gestión de las aguas. Las modalidades y delimitación de estas zonas estratégicas se definirán por decreto.
Dicho decreto deberá ser compatible con las orientaciones fijadas por el plan director mencionado en el artículo L. 212-1.
Artículo L212-6 (Ley nº 2004-338 de 21 de abril de 2004 art. 5 Diario Oficial de 22 de abril de 2004)
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CÓDIGO DE MEDIO AMBIENTE El proyecto de plan de ordenación y gestión de las aguas será elaborado y revisado por la Comisión Local del
Agua, en un plazo que podrá ser fijado por el plan director de ordenación y gestión de las aguas en aplicación del punto X del artículo L. 212-1. No obstante, si el proyecto no hubiera sido elaborado o revisado tras la expiración de dicho plazo, podrá encargarse de ello la autoridad administrativa. El proyecto será sometido al dictamen de los Consejos Generales, de los Consejos Regionales, de las entidades públicas territoriales de cuenca, de las cámaras profesionales y del Comité de Cuenca correspondientes. El Comité de Cuenca se encargará de la armonización de los planes de ordenación y gestión de las aguas que entren en el ámbito de su competencia.
El proyecto será hecho público por la autoridad administrativa y contendrá como anexo los dictámenes de las personas consultadas. La memoria resumen del proyecto estará a disposición pública durante dos meses.
Al término de este plazo, el plan de ordenación y gestión de las aguas, eventualmente modificado en función de las observaciones de los ciudadanos, de los dictámenes de los municipios, de los Consejos Generales, de los Consejos Regionales y del Comité de Cuenca, será aprobado por la autoridad administrativa y se pondrá a disposición pública.
Una vez aprobado el plan, las decisiones adoptadas en el ámbito del agua por las autoridades administrativas, y aplicables dentro del perímetro definido por el plan, tendrán que ser o hacerse compatibles con dicho plan. Las demás decisiones administrativas tendrán que tener en cuenta las disposiciones del plan.
La Comisión Local del Agua estará informada de las realizaciones, documentos o programas que surtan efecto dentro de los límites establecidos para el plan de ordenación y gestión de las aguas así como de las decisiones citadas en el párrafo anterior.
Artículo L212-7 Las condiciones de aplicación de los artículos L.212-3 a L.212-6 se determinarán por decreto, si así fuere
necesario.
Capítulo III Estructuras administrativas y financieras Artículos L213-1 a
L213-20
Sección I Comité Nacional del Agua Artículo L213-1
Artículo L213-1 El Comité Nacional del Agua tendrá por misión: 1° Emitir dictamen sobre las circunscripciones geográficas de las cuencas y agrupaciones de cuencas que fueran
competencia de los Comités contemplados en el artículo L.213-2; 2° Emitir dictamen sobre todos los proyectos de ordenación y de distribución de las aguas que tengan un carácter
nacional, así como sobre las grandes obras regionales de ordenación hidráulica; 3° Emitir dictamen sobre cualquier problema común a dos o varios Comités de cuenca o Agencias del agua; 4° De modo general, reunir la documentación necesaria y emitir dictámenes sobre todas las cuestiones que sean
objeto de los capítulos I a VII del presente título.
Sección II Comités de cuenca Artículos L213-2 a
L213-4
Artículo L213-2 I. - En cada cuenca o agrupación de cuencas se creará un Comité de cuenca que estará formado por: 1° Representantes de las regiones y de las entidades locales pertenecientes en su totalidad o en parte a la cuenca; 2° Representantes de los usuarios y personas competentes; 3° Representantes nombrados por los organismos del Estado, principalmente entre los sectores sociales y
profesionales. II. - Los representantes de las dos primeras categorías tendrán al menos las dos terceras partes de los puestos. III. - Este organismo será consultado sobre la oportunidad de las obras de ordenación hidráulica de interés general
previstas en la zona de su competencia, sobre las controversias que pudieran surgir entre las entidades o agrupaciones interesadas y, de manera general, sobre todas las cuestiones que son objeto de los capítulos I a VII del presente título.
IV. - Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente artículo
Artículo L213-3 En cada cuenca, el Prefecto de la región donde el Comité de cuenca tenga su sede fomentará y coordinará la
política estatal en materia de policía y de gestión de los recursos hídricos, a fin de conseguir la unidad y la coherencia de las actuaciones que en este ámbito el Estado delega en las regiones y departamentos correspondientes.
Los decretos previstos en el artículo L.211-2 determinarán las condiciones de intervención del Prefecto coordinador de cuenca, especialmente en lo que se refiere a la gestión de las situaciones de crisis, así como todas las clases de medios necesarios para el desempeño de las funciones que tiene atribuidas en virtud de los capítulos I a VII del presente título.
Artículo L213-4 En cada departamento de Ultramar, un Comité de cuenca, además de las competencias que le son conferidas por
el artículo L.213-2, se encargará del establecimiento de las estructuras administrativas que fueran necesarias y, si
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CÓDIGO DE MEDIO AMBIENTE procediera, de la elaboración de las adaptaciones que facilitaran la aplicación de las disposiciones de los capítulos I a IV, VI y VII del presente título en el correspondiente departamento.
Sección III Agencias del agua Artículos L213-5 a
L213-7
Artículo L213-5 I. - En cada cuenca o agrupación de cuencas, una Agencia del Agua, organismo público administrativo dotado de
personalidad civil y de autonomía financiera, estará encargada de facilitar las diferentes acciones de interés general para la cuenca o la agrupación de cuencas.
II. - Cada agencia será administrada por un consejo de administración que estará formado por: 1° Un presidente nombrado por decreto; 2° Representantes de las regiones y de las entidades locales pertenecientes en su totalidad o en parte a la cuenca; 3° Representantes de los usuarios; 4° Representantes del Estado y, en su caso, personalidades cualificadas; 5° Un representante del personal de la Agencia. III. - Las categorías citadas en los apartados 2º, 3º y 4º del punto II dispondrán del mismo número de puestos.
Artículo L213-6 (Ley nº 2004-1485 de 30 de diciembre de 2004 art. 121 II Ley de finanzas rectificativa para 2004 Diario Oficial de 31 de diciembre de 2004) (Ley nº 2005-95 de 9 de febrero de 2005 art. 2 Diario Oficial de 10 de febrero de 2005) (Ley nº 2005-157 de 23 de febrero de 2005 art. 196 Diario Oficial de 24 de febrero de 2005)
La Agencia participará, principalmente a través de contribuciones financieras, al presupuesto del Estado, en la realización de estudios, investigaciones y obras de interés general para las cuencas, y contribuirá a cubrir sus gastos de funcionamiento.
La Agencia concederá subvenciones y anticipos reembolsables a las personas públicas y privadas para la ejecución de obras de interés general para la cuenca o la agrupación de cuencas y realizadas directamente por las mismas, en la medida en que estas obras sean susceptibles de reducir las cargas financieras de la agencia.
La Agencia concederá subvenciones de capital a las entidades territoriales y a sus agrupaciones para la realización de obras de abastecimiento de agua potable y saneamiento en los municipios rurales.
En cumplimiento de los compromisos internaciones de Francia y en el marco de los contratos sometidos a la aprobación del Comité de Cuenca, la Agencia podrá realizar, con ayuda de sus agentes, actividades de cooperación internacional en los ámbitos del agua y el saneamiento, hasta el límite del 1% y con arreglo a las normas estatutarias en vigor aplicables a cada categoría de personal.
El programa plurianual de la Agencia del Agua tendrá en cuenta las obras realizadas en zona de montaña por los titulares de las explotaciones agrícolas, en materia de prevención de la contaminación del agua en cuencas situadas aguas arriba de las zonas de captaciones actuales o futuras destinadas al abastecimiento de agua potable, así como las obras realizadas en zona de montaña en el marco de programas de acción coordinados y necesarios para alcanzar los objetivos de calidad definidos por un plan de ordenación y gestión de las aguas o por el plan director de ordenación y gestión de las aguas.
Artículo L213-7 Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación de los artículos L.213-5 a
L.213-6.
Sección IV Fondo Nacional del Agua Artículo L213-8
Artículo L213-8 (Ley nº 2002-1575 de 30 de diciembre de 2002 art. 44 II Diario Oficial de 31 de diciembre de 2002) (Ley nº 2003-1311 de 30 de diciembre de 2003 art. 38 Ley de finanzas para 2004 Diario Oficial de 31 de diciembre de 2003)
De conformidad con lo establecido por el artículo 58 de la Ley de finanzas para 2000 (Ley nº 99-1172 de 30 de diciembre de 1999), reproducido a continuación:
"I. - Derogado. II. - A partir del 1 de enero de 2000, se establecerá una contribución solidaria para el agua abonada por las
agencias del agua al Estado y cuyo importe será determinado anualmente en la Ley de finanzas; La contribución será abonada al contable del Tesoro del lugar donde cada agencia tenga su sede, en forma de un
pago único que se efectuará antes del día 15 de febrero de cada año. Esta contribución será recaudada en las mismas condiciones que las establecidas para los créditos del Estado no
relativos al impuesto, al patrimonio, a las multas y demás sanciones pecuniarias. El importe de la contribución solidaria para el agua se anotará como gasto obligatorio en el presupuesto inicial de
las agencias del agua.
Sección V
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CÓDIGO DE MEDIO AMBIENTE Entidades locales del agua Artículo L213-9
Artículo L213-9 A fin de facilitar la consecución de los objetivos establecidos en un plan de ordenación y gestión de las aguas, las
entidades territoriales interesadas y sus agrupaciones que ejercieran total o parcialmente las competencias enumeradas en el artículo L.211-7 podrán constituir conjuntamente una Entidad Local del Agua.
Esta entidad pública será constituida y funcionará de conformidad con las disposiciones que regulan una de las entidades públicas mencionadas en los títulos I y II del libro II y en los libros IV y VII de la parte quinta del Código General de Entidades Territoriales.
Las asociaciones y comunidades de personas físicas o jurídicas que desempeñaran actividades en el ámbito del agua podrán asociarse a sus trabajos, a título consultivo.
Dentro del límite de su perímetro de intervención, la Entidad Local del Agua podrá ejercer total o parcialmente las competencias enumeradas en el artículo L.211-7.
Establecerá y adoptará un programa plurianual de intervención previa aprobación de la Comisión Local del Agua. Un decreto determinará las condiciones de aplicación del presente artículo.
Sección VI Organismos públicos con capacidad adjudicadora Artículo L213-10
Artículo L213-10 (Ley nº 2003-699 de 30 de julio de 2003 art. 46 Diario Oficial de 31 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 136 II Diario Oficial de 24 de febrero de 2005)
A fin de facilitar, a nivel de una cuenca o de una subcuenca hidrográfica, la prevención de las inundaciones, la gestión equilibrada de los recursos hídricos y la preservación de le gestión de las zonas húmedas, las entidades territoriales interesadas y sus agrupaciones podrán asociarse en el seno de un organismo público de cuenca de ámbito territorial.
Este organismo público se constituirá y funcionará, según los casos, de conformidad con las disposiciones del Código de Entidades Territoriales que regulan las entidades públicas constituidas en aplicación de los artículos L. 5421-1 a L. 5421-6 o de los artículos L. 5721-1 a L. 5721-8 del mismo Código.
El Prefecto coordinador de cuenca, previo dictamen del Comité de Cuenca y de las entidades territoriales interesadas y, si procede, previo dictamen de la Comisión Local del Agua, dictará una orden por la que delimitará el ámbito de intervención de este organismo público.
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente artículo.
Sección VII Oficinas del Agua de los departamentos de Ultramar Artículos L213-13 a
L213-20
Artículo L213-13 (introducido por la Ley nº 2003-660 de 21 de julio de 2003 art. 54 I, II Diario Oficial de 22 de julio de 2003)
I. - En cada uno de los departamentos de Ultramar, se creará una Oficina del Agua, entidad pública local de carácter administrativo vinculada al departamento.
En colaboración con el Comité de cuenca, y de conformidad con los principios de gestión de los recursos y de los medios naturales definidos en el artículo L.110-1, la Oficina del Agua se encargará de facilitar las diferentes acciones de interés común en el ámbito de la gestión de las aguas y de los medios acuáticos. Sin perjuicio de las competencias atribuidas en esta materia al Estado y a las entidades territoriales, ésta cumplirá las siguientes misiones:
a) El estudio y el seguimiento de los recursos hídricos, de los medios acuáticos y litorales y de sus usos; b) El asesoramiento y la asistencia técnica a las entidades titulares de proyectos, la formación y la información en
el ámbito de la gestión del agua y de los medios acuáticos; c) A propuesta del Comité de cuenca, la programación y la financiación de acciones y de obras. II. - La Oficina del Agua será administrada por un consejo de administración que estará formado por: 1° Representantes de la región, del departamento y de los municipios, así como de las entidades públicas de
cooperación intermunicipal o de las entidades administrativas mixtas que tuvieran competencias en el ámbito del agua; 2° Representantes de los servicios del Estado en el departamento; 3° Representantes de los usuarios y de los medios sociales y profesionales; 4° Representantes de asociaciones autorizadas de consumidores y de protección del medio ambiente; 5° Personalidades cualificadas en el ámbito del agua y de los medios acuáticos y litorales. Los miembros nombrados en virtud de lo dispuesto en el apartado 1º constituirán al menos el 50% del consejo de
administración. Un representante del personal ocupará un puesto en el consejo de administración con voz pero sin voto. El presidente del Consejo General asumirá la presidencia de la Oficina. El director de la Oficina será nombrado, previo dictamen del Prefecto, por orden del Presidente del Consejo
General. El Prefecto ejercerá las funciones de comisario del Gobierno ante la Oficina. III. - El personal de la Oficina será contratado y administrado en el marco de las disposiciones legislativas y
reglamentarias aplicables a la función pública territorial.
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CÓDIGO DE MEDIO AMBIENTE IV. - Los recursos financieros de la oficina procederán de: 1° Los cánones por extracción de agua, a propuesta del Comité de Cuenca y en el marco de un programa
plurianual de intervención; 2° Las tasas por los servicios prestados; 3° Las subvenciones; 4° Los recursos financieros previstos por las leyes y demás disposiciones vigentes. El control de legalidad y el control presupuestario de las actuaciones de la Oficina serán llevados a cabo de
conformidad con lo dispuesto en el artículo L.3241-1 del Código General de Entidades Territoriales.
Artículo L213-14 (introducido por la Ley nº 2003-660 de 21 de julio de 2003 art. 54 I, III Diario Oficial de 22 de julio de 2003)
I. - Si el Comité de Cuenca confiara a la Oficina del Agua la programación y la financiación de las acciones y las obras, en aplicación de las disposiciones del apartado c del punto I del artículo L.213-13, esta Oficina establecerá un programa plurianual de intervención para determinar los ámbitos y las condiciones de su intervención y prever el importe de los gastos y de los ingresos necesarios para su realización.
II. - A propuesta del Comité de Cuenca y en el marco del programa plurianual anteriormente mencionado, la Oficina establecerá y percibirá un canon por la extracción de agua que pagarán las personas públicas o privadas que extraen agua del medio naturaL.El canon será calculado aplicando al volumen de agua extraída unos porcentajes que tendrán en cuenta el uso al que está destinado el agua extraída.
III. - Cuando se estableciera, el canon por extracción de agua estará basado en el volumen de agua extraído del medio natural durante un año. Dicho canon correrá a cargo de la persona que realiza la extracción. Las obligaciones de declaración a las cuales habrán de someterse las personas que extraen el agua de los medios naturales serán determinadas por decreto.
IV. - El canon porcentual por extracción de agua será fijado por deliberación del consejo de administración de la Oficina previa aprobación del Comité de Cuenca dentro de los límites siguientes:
- por las extracciones de agua destinada al abastecimiento de agua potable: entre 0,5 céntimo de euro por metro cúbico y 5 céntimos de euro por metro cúbico;
- por las extracciones de agua realizadas para el riego de terrenos agrícolas: entre 0,1 céntimo de euro por metro cúbico y 0,5 céntimos de euro por metro cúbico;
- por las extracciones de agua realizadas para las demás actividades económicas: entre 0,25 céntimo de euro por metro cúbico y 2,5 céntimos de euro por metro cúbico;
Cuando la extracción esté destinada a varios usos, el canon será calculado proporcionalmente a los volúmenes utilizados para cada uso.
Cuando las extracciones estén destinadas a una distribución pública, las personas que realizan la extracción tendrán que repartir equitativamente el coste de este canon entre todos los consumidores.
V. - Estarán exentos del pago del canon: 1° Las extracciones realizadas en el mar; 2° Los desagües de minas, así como las extracciones que fueran necesarias para la ejecución de obras
subterráneas, en la medida en que el agua extraída no fuera utilizada directamente para fines domésticos, industriales o agrícolas;
3° Las extracciones relacionadas con la acuicultura; 4° Las extracciones destinadas a la realimentación de medios naturales; 5° Las extracciones destinadas a la lucha contra incendios; 6° Las extracciones de agua destinadas a la producción de energías renovables; 7° Las extracciones de aguas subterráneas efectuadas durante un drenaje realizado para evitar filtraciones en
edificios o construcciones. VI. No se deberá pagar el canon cuando el volumen de agua extraído fuera inferior a 50.000 metros cúbicos por
año. VII. - En ausencia de medición de los volúmenes extraídos, el canon se fijará basándose en un volumen a tanto
alzado de acuerdo con la actividad. El valor de los volúmenes a tanto alzado específicos de cada actividad será fijado en las condiciones establecidas
por decreto, previo dictamen del Comité Nacional del Agua.
Artículo L213-15 (introducido por la Ley nº 2003-660 de 21 de julio de 2003 art. 54 I, III Diario Oficial de 22 de julio de 2003)
I. - La Oficina controlará el conjunto de los elementos que permiten verificar el cálculo de la base del canon. El control podrá llevarse a cabo en base a pruebas documentales y sobre el propio terreno.
II. - La Oficina podrá solicitar que se presenten las pruebas documentales necesarias así como todos los justificantes que sirvan para controlar el volumen extraído.
III. - El control sobre el propio terreno será realizado bajo la responsabilidad de los agentes de la Oficina habilitados por su director. La Oficina informará al deudor con carácter previo de que durante las operaciones de control puede beneficiarse de una asistencia jurídica de su elección.
IV. - La Oficina notificará al deudor los resultados del control. V. - Un decreto adoptado en Conseil d'Etat precisará las condiciones de aplicación del presente artículo.
Artículo L213-16
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CÓDIGO DE MEDIO AMBIENTE (introducido por la Ley nº 2003-660 de 21 de julio de 2003 art. 54 I, III Diario Oficial de 22 de julio de 2003)
I. - La Oficina dispondrá de un derecho a la comunicación que le permitirá tener conocimiento y, en caso de necesidad, obtener una copia de los documentos que obran en poder de terceros a fin de utilizarlos para el cálculo de la base o el control del canon.
II. - Las administraciones del Estado, las entidades territoriales, las empresas controladas por el Estado, así como los establecimientos u organismos de toda índole sujetos al control de la autoridad administrativa, tendrán que comunicar a la Oficina, si ésta lo solicitara, los documentos de servicio obrantes en su poder que fueran necesarios para realizar el control de la base de cálculo, sin que puedan alegar secreto profesional.
III. - La obligación de secreto profesional, tal como está definida en el artículo 226-13 del Código Penal, se aplicará a todas las personas que tuvieran que intervenir, en el ejercicio de sus funciones o atribuciones, en el cálculo de la base de los cánones, en su control, en su cobro o en el procedimiento contencioso-administrativo a que diera lugar.
Artículo L213-17 (introducido por la Ley nº 2003-660 de 21 de julio de 2003 art. 54 I, III Diario Oficial de 22 de julio de 2003)
I. - Quedarán establecidos de oficio los cánones deberán pagar las personas: 1° Que no hubieran presentado la declaración de los elementos necesarios para su cálculo en la fecha fijada en
aplicación del artículo L.213-14, tras la expiración de un plazo de treinta días a partir del requerimiento previo que la Oficina les hubiera dirigido;
2° Que se hubieran abstenido de responder a las peticiones de datos, justificantes o aclaraciones presentadas en base al artículo L.213-15;
3° Que se hubieran negado a someterse a los controles o que hubieran obstaculizado su desarrollo. II. - En caso de proceder a una tasación de oficio motivada por una oposición al control, los suplementos de
derechos que debiera pagar el deudor irán acompañados de un recargo de un 100%. III. - En caso de proceder a la imposición de oficio, se comunicará al deudor las bases o elementos que sirvieron
para el cálculo de los cánones, al menos treinta días antes de la puesta al cobro de los mismos, mediante notificación que indicará el modo de determinación de dichas bases o elementos y el importe de los cánones a pagar, así como también la facultad de que dispone el deudor para presentar sus alegaciones en este mismo plazo.
Dicha notificación interrumpirá la prescripción.
Artículo L213-18 (introducido por la Ley nº 2003-660 de 21 de julio de 2003 art. 54 I, III Diario Oficial de 22 de julio de 2003)
La Oficina podrá subsanar las omisiones totales o parciales constatadas en el cálculo de la base de los cánones, las insuficiencias, las inexactitudes o los errores de imposición hasta pasados tres años a contar desde la fecha de devengo del canon.
Artículo L213-19 (introducido por la Ley nº 2003-660 de 21 de julio de 2003 art. 54 I, III Diario Oficial de 22 de julio de 2003)
La Oficina podrá ordenar la desgravación o la devolución de los cánones y sanciones pecuniarias indebidos. La Oficina podrá reducir total o parcialmente los cánones y las sanciones pecuniarias a petición motivada del
deudor.
Artículo L213-20 (introducido por la Ley nº 2003-660 de 21 de julio de 2003 art. 54 I, III Diario Oficial de 22 de julio de 2003)
El director de la Oficina establecerá los títulos de cobros relativos al canon y los dotará de fuerza ejecutiva. El contable de la Oficina será el encargado de recaudar los cánones, en las mismas condiciones establecidas para
las contribuciones directas. Los plazos del presente artículo empezarán a contar a partir de la fecha de la puesta al cobro. Se determinará como fecha de exigibilidad el último día del mes siguiente a la puesta al cobro. Se considerará como fecha límite de pago el día 15 del segundo mes siguiente a la puesta al cobro. En caso de
impago transcurrida esta fecha, el importe del canon tendrá un recargo del 10%. Los cánones o suplementos de cánones inferiores a 100 euros no serán puestos al cobro.
Capítulo IV Actividades, instalaciones y uso Artículos L214-1 a
L214-16
Sección I Regímenes de autorización o de declaración Artículos L214-1 a
L214-7-1
Artículo L214-1 (Disposición nº 2005-805 de 18 de julio de 2005 art. 1 Diario Oficial de 19 de julio de 2005)
Estarán sujetas a lo dispuesto en los artículos L. 214-2 a L. 214-6 las instalaciones que no figuren en el listado de instalaciones clasificadas, construcciones, obras y actividades realizadas con fines no domésticos por cualquier persona física o jurídica, pública o privada, y que implicaran extracciones de aguas superficiales o subterráneas, restituidas o no, una modificación del nivel o del modo de evacuación de las aguas, la destrucción de frezaderos o de zonas de crecimiento o alimentación de la fauna piscícola, o vertidos escorrentías, descargas, depósitos directos o
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CÓDIGO DE MEDIO AMBIENTE indirectos, crónicos o episódicos, incluso no contaminantes.
Artículo L214-2 (Disposición nº 2005-805 de 18 de julio de 2005 art. 2 Diario Oficial de 19 de julio de 2005)
Las instalaciones, construcciones, obras y actividades contempladas en el artículo L. 214-1 estarán recogidas en un listado establecido por decreto adoptado en Conseil d'Etat, previo dictamen del Comité Nacional del Agua, y estarán sujetas a autorización o a declaración en función de los peligros que pudieran constituir y de la gravedad de sus efectos sobre los recursos hídricos y los ecosistemas acuáticos.
Dicho decreto definirá además los criterios de uso doméstico y, en especial, el volumen de agua por debajo del cual la extracción será considerada para ese uso, así como las otras formas de aprovechamiento cuyo impacto sobre el medio acuático sea demasiado débil como para justificar que sean sometidas a autorización o a declaración.
Artículo L214-3 (Disposición nº 2005-805 de 18 de julio de 2005 art. 3 Diario Oficial de 19 de julio de 2005)
I. - Estarán sujetas a autorización administrativa las instalaciones, construcciones, obras y actividades que sean susceptibles de crear peligros para la salud y la seguridad pública, de perjudicar la libre escorrentía de las aguas, de reducir los recursos hídricos, de incrementar notablemente el riesgo de inundación y de alterar gravemente la calidad o la diversidad del medio acuático en general y las poblaciones piscícolas en particular.
Las disposiciones necesarias para la protección de los intereses mencionados en el artículo L. 211-1, los medios de vigilancia, los procedimientos de los controles técnicos y los medios de intervención en caso de incidente o accidente serán establecidos en la resolución de autorización y, eventualmente, en actos complementarios adoptados posteriormente a esta autorización.
II. - Deberán ser declaradas a la administración las instalaciones, construcciones, obras y actividades que, a pesar de no ser susceptibles de crear tales peligros, tuvieran que cumplir lo dispuesto en los artículos L. 211-2 y L. 211-3.
En un plazo fijado por decreto adoptado en Conseil d'Etat, la autoridad administrativa podrá oponerse a la operación proyectada si considerara que ésta es incompatible con las disposiciones del plan director de ordenación y gestión de las aguas o del plan de ordenación y gestión de las aguas, o perjudica gravemente los intereses contemplados en el artículo L. 211-1, hasta tal punto que ninguna nueva disposición pudiera subsanarla. Las obras no podrán comenzar hasta la expiración de dicho plazo.
Si no se respetaran los intereses citados en el artículo L. 211-1 mediante el cumplimiento de lo dispuesto en los artículos L. 211-2 y L. 211-3, la autoridad administrativa podrá en todo momento dictar las disposiciones que juzgue necesarias.
III. - Por decreto se determinarán las condiciones en las cuales las disposiciones citadas en los puntos I y II serán establecidas, modificadas y puestas en conocimiento de terceros.
IV. - Por decreto adoptado en Conseil d'Etat se determinarán las condiciones en las cuales varias solicitudes de autorización y declaración relativas a operaciones conexas o pertenecientes a una misma actividad pueden ser objeto de un mismo procedimiento.
Artículo L214-4 (Ley nº 2005-781 de 13 de julio de 2005 art. 48 Diario Oficial de 14 de julio de 2005)
I. - La autorización será concedida tras una consulta pública y, en su caso, por un período determinado. Por decreto se determinarán las condiciones en las cuales se podrá conceder sin previa consulta pública la renovación de las autorizaciones y la autorización de obras, instalaciones o actividades que tuvieran un carácter temporal y no tuvieran efectos importantes y duraderos sobre el medio natural.
II. - La autorización podrá ser revocada o modificada, sin indemnización por parte de la autoridad estatal competente en el ejercicio de las funciones de policía, en los casos siguientes:
1° En interés de la salubridad pública y, especialmente, cuando dicha revocación o modificación fuera necesaria para el abastecimiento de agua potable a las poblaciones;
2° Para prevenir las inundaciones o paliar sus consecuencias, o en caso de amenaza para la seguridad pública; 3° En caso de grave amenaza para el medio acuático y, especialmente, cuando tales medios acuáticos estuvieran
sometidos a condiciones hidráulicas críticas que no fueran compatibles con su preservación; 4° Cuando las construcciones o instalaciones estuvieran abandonadas o ya no fueran objeto de un mantenimiento
regular. III. - Toda denegación, revocación o modificación de una autorización tendrá que ser motivada. IV. - Por decreto se determinarán las condiciones en las cuales se podrá conceder, sin previa consulta pública, una
autorización de obras y actividades de carácter temporal, periódico y sin efecto importante y duradero sobre el medio natural, a las empresas hidroeléctricas autorizadas que lo solicitaran por un periodo determinado. Las disposiciones de los decretos en vigor en la fecha de publicación de la Ley programática n°2005-781 de 13 de julio, por la que se establecen orientaciones de política energética, que estén en contradicción con las disposiciones del decreto arriba mencionado, serán derogadas
Artículo L214-5 En virtud de lo establecido en el artículo 10 de la Ley de 16 de octubre de 1919, relativa al aprovechamiento de la
energía hidráulica, y en los artículos L.214-1 a L.214-6, los reglamentos en materia de aguas de las empresas hidráulicas se adoptarán conjuntamente.
Dichos reglamentos podrán ser objeto de modificaciones sin que se pueda cuestionar, no obstante, el equilibrio general de la concesión.
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CÓDIGO DE MEDIO AMBIENTE Artículo L214-6 (Disposición nº 2005-805 de 18 de julio de 2005 art. 4 Diario Oficial de 19 de julio de 2005)
I. - En cualquier caso, los derechos de terceros serán siempre respetados. II. - Las instalaciones, construcciones y actividades declaradas o autorizadas en aplicación de disposiciones
legales o reglamentarias sobre agua anteriores al 4 de enero de 1992, se considerarán declaradas o autorizadas en virtud de la presente sección. Lo mismo ocurrirá con las instalaciones y construcciones que se beneficien de una exención de autorización .
III. - Las instalaciones, construcciones y actividades que no entraran en el ámbito de aplicación del punto II y hubieran sido sometidas a partir del 4 de enero de 1992, en virtud del listado previsto en el artículo L. 214-2, a una obligación de declaración o autorización que no se hubiera satisfecho, podrán seguir funcionando o proseguirse siempre que el titular de explotación o, en su defecto, el propietario, hubiera remitido a la autoridad administrativa la información prevista por el artículo 41 del Decreto n° 93-742 de 29 de marzo de 1993, como máximo el 31 de diciembre de 2006.
No obstante, si el funcionamiento de dichas instalaciones o construcciones o la prosecución de dichas actividades pudiera ocasionar un perjuicio grave para los intereses mencionados en el artículo L. 211-1, la autoridad administrativa podrá exigir la presentación de una declaración o de una solicitud de autorización.
IV. - Las instalaciones, construcciones, obras y actividades que tras haber comenzado a funcionar o tras haberse iniciado de forma legal, fueran sometidas a declaración o autorización en virtud de una modificación del listado previsto en el artículo L. 214-2, podrán seguir funcionando o proseguirse, siempre que el titular de explotación o, en su defecto, el propietario, lo declare a la autoridad administrativa y, en caso de haberlo declarado, en el plazo de un año a partir de la fecha en que hubiera sido instituida la nueva obligación.
Por decreto adoptado en Conseil d'Etat se precisará la información que debiera entregarse a la autoridad administrativa, así como las medidas que ésta pudiera imponer para proteger los intereses citados en el artículo L. 211-1.
V. - Será de aplicación lo dispuesto en los puntos II y III, sin perjuicio de lo acordado por sentencia judicial con fuerza de cosa juzgada antes de la fecha de publicación de la Disposición nº 2005-805 de 18 de julio de 2005.
VI. - Las instalaciones, construcciones y actividades citadas en los puntos II, III y IV estarán sujetas a lo dispuesto en la presente sección.
Artículo L214-7 Las instalaciones sometidas a autorización o a declaración según lo dispuesto en el título I del libro V estarán
sujetas a lo dispuesto en los artículo L.211-1, L.212-1 a L.212-7, L.214-8, L.216-6 y L.216-13. Las medidas individuales y reglamentarias adoptadas en aplicación del título I del libro V fijarán las normas aplicables a las instalaciones clasificadas que tengan un impacto sobre el medio acuático, sobre todo en lo concerniente a sus vertidos y extracciones.
Artículo L214-8 Las instalaciones sometidas a autorización o a declaración de conformidad con lo establecido en los artículos
L.214-1 a L.214-6 que permitan realizar, para fines no domésticos, extracciones de agua superficial o vertidos, así como cualquier instalación de bombeo de aguas subterráneas, tendrán que estar provistas de los medios de medición o de valoración apropiados. Sus explotadores o, de no existir explotadores, sus propietarios deberán asumir su instalación y su funcionamiento, conservar durante tres años los datos correspondientes y tenerlos a disposición de la autoridad administrativa y de las personas jurídicas de derecho público cuya lista será establecida por decreto.
Las instalaciones existentes deberán ajustarse a las disposiciones del presente artículo en el plazo de cinco años a partir del 4 de enero de 1992.
Lo dispuesto en este artículo se aplicará igualmente a las instalaciones clasificadas según lo dispuesto en el título I del libro V.
Artículo L214-9 I. - Sin perjuicio de la aplicación del artículo L.211-8, cuando las obras de ordenación hidráulica, diferentes de
aquellas concedidas o autorizadas en aplicación de la Ley de 16 de octubre de 1919 antes citada, tengan por objeto o como consecuencia la regulación del caudal de un curso de agua de dominio privado o el aumento de su caudal en época de estiaje, en un tramo de ese curso de agua y durante un período determinado, la totalidad o parte del caudal artificial podrá ser asignado a determinados usos mediante declaración de utilidad pública.
II. - El acta de declaración de utilidad pública tendrá valor de autorización en concepto de la presente subsección y determinará, en las condiciones previstas por decreto, además de las normas para su instalación y su explotación:
1° Un caudal asignado, determinado en función de los recursos disponibles en las diferentes épocas del año y atribuido prioritariamente al beneficiario de la declaración de utilidad pública;
2° Las disposiciones que se estimen necesarias para garantizar el paso de la totalidad o parte del caudal asignado en el tramo considerado, en las condiciones más racionales y menos perjudiciales para los demás usuarios de dicho curso de agua y siempre con el debido respeto a los ecosistemas acuáticos.
III. - Las disposiciones del presente artículo serán igualmente aplicables a las obras de ordenación hidráulica autorizadas con anterioridad al 4 de enero de 1992.
Artículo L214-10 Las decisiones adoptadas en aplicación del artículo L.214-1 a L.214-6 y L.214-8 podrán ser objeto de recurso
contencioso-administrativo en las condiciones previstas en el artículo L.514-6.
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CÓDIGO DE MEDIO AMBIENTE Artículo L214-11
Se determinarán por decreto las condiciones en las cuales se podrá autorizar la descarga de efluentes agrícolas.
Artículo L214-7-1 (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 127 III Diario Oficial de 24 de febrero de 2005)
Cuando lo considere necesario para la aplicación de los artículos L. 214-1 y L. 214-7, el Prefecto podrá delimitar la totalidad o parte de las zonas húmedas definidas en el artículo L. 211-1 en coordinación con las entidades territoriales y sus agrupaciones.
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente artículo.
Sección II Circulación de artefactos y embarcaciones Artículos L214-12 a
L214-13
Artículo L214-12 En ausencia de aprobación de un plan de ordenación y de gestión de las aguas, la circulación por los cursos de
agua de los artefactos náuticos de recreo no motorizados se realizará libremente respetando las leyes y reglamentos de policía y los derechos de los ribereños.
En los cursos de agua o tramos de cursos de agua de dominio privado, el Prefecto podrá regular, tras acuerdo con las partes interesadas, la circulación de los artefactos náuticos de recreo no motorizados o la práctica del turismo, de las actividades recreativas y de los deportes náuticos a fin de garantizar la protección de los principios mencionados en el artículo L.211-1.
Los propietarios ribereños de los cursos de agua de dominio privado no serán responsables civilmente de los daños causados o sufridos como consecuencia de la circulación de artefactos náuticos de recreo no motorizados o por la práctica del turismo, de actividades recreativas y de deportes náuticos, salvo que fueran declarados responsables de actos constitutivos de delito.
Artículo L214-13 Por motivo de seguridad o salubridad, o previa solicitud del propietario ribereño cuando la circulación implicara una
grave perturbación para el disfrute de sus derechos, una orden prefectoral podrá prohibir o regular la circulación de las embarcaciones a motor por un curso de agua de dominio privado o por un tramo de este curso de agua, previo dictamen del servicio encargado de ejercer las funciones de policía de dicho curso de agua.
Sección III Saneamiento Artículo L214-14
Artículo L214-14 Las disposiciones relativas al saneamiento están recogidas en el Código de Salud Pública (parte primera, libro III,
título III, capítulo I, artículos L.1331-1 a L.1331-16) y en el Código General de Entidades Territoriales (parte segunda, libro II, título II, capítulo IV, secciones 1 y 2).
Sección IV Precio del agua Artículos L214-15 a
L214-16
Artículo L214-15 (Ley nº 2002-92 de 22 de enero de 2002 art. 27 Diario Oficial de 23 de enero de 2002)
La factura del agua incluirá un importe calculado en función del volumen realmente consumido por el abonado de un servicio de abastecimiento de agua y podrá, además, incluir un importe calculado independientemente de ese volumen con base en los costes fijos del servicio y las características de la acometida.
No obstante, excepcionalmente y en las condiciones establecidas por decreto adoptado en Conseil d'Etat, previa solicitud del Alcalde o del presidente del organismo público de cooperación intermunicipal o de los presidentes de las entidades administrativas mixtas citadas en el artículo L.5721-2 del Código General de Entidades Territoriales y que tengan competencia para asegurar el abastecimiento de agua, el Prefecto podrá autorizar la aplicación de una tarificación que no incluya ningún término directamente proporcional al volumen total consumido, siempre que los recursos hídricos sean naturalmente abundantes y que el número de usuarios conectados a la red sea suficientemente bajo, o siempre que el municipio esté sujeto a grandes variaciones periódicas de su número de habitantes.
En Córcega, la Asamblea de Córcega autorizará la aplicación del régimen de tarificación considerado en el párrafo anterior en las mismas condiciones, previa solicitud del Alcalde, del Presidente del organismo público de cooperación intermunicipal o del Presidente de la entidad administrativa mixta competente.
Artículo L214-16 El artículo L.214-15 no será de aplicación a la entidad territorial de Saint-Pierre-et-Miquelon.
Capítulo V Disposiciones aplicables a los cursos de agua de dominio privado Artículos L215-1 a
L215-24
Sección I
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CÓDIGO DE MEDIO AMBIENTE Derechos de los propietarios ribereños Artículos L215-1 a
L215-6
Artículo L215-1 Los propietarios ribereños solamente tendrán el derecho al uso privativo de las aguas procedentes de las
corrientes que bordean o atraviesan sus heredades dentro de los límites establecidos por la Ley. En el ejercicio de este derecho, tendrán que ajustarse a lo dispuesto en los reglamentos y autorizaciones dimanantes de la Administración.
Artículo L215-2 El cauce de los cursos de agua de dominio privado pertenece a los propietarios de ambas riberas. Si ambas riberas pertenecen a propietarios diferentes, cada uno de ellos tendrá la propiedad de la mitad del cauce,
a partir de una línea divisoria trazada por medio de dicho cauce, salvo título o prescripción en contrario. Cada propietario ribereño tendrá el derecho de recoger, en la parte del cauce que le perteneciera, todos los
productos naturales y de extraer fango, arena y piedras, siempre que no modifique el régimen de las aguas y que proceda a la limpieza del curso de agua de conformidad con las normas establecidas en los artículos L.215-14 a L.215-24.
Los derechos adquiridos por los propietarios ribereños u otros interesados sobre los tramos de los cursos de agua que sirvan de vía de explotación para el servicio de sus predios serán siempre respetados.
Artículo L215-3 Cuando el cauce de un curso de agua quede abandonado, de forma natural o a causa de obras realizadas
legalmente, cada propietario ribereño recobrará su libre disposición, dentro de los límites establecidos por el artículo anterior.
Artículo L215-4 Cuando un curso de agua de dominio privado abandonara su cauce de forma natural, los propietarios de los
predios donde se sitúe el nuevo cauce tendrán que aceptar el paso de las aguas sin indemnización, pero podrán adoptar las medidas necesarias para restablecer el antiguo curso de las aguas a partir del año siguiente del desvío del cauce.
Los propietarios ribereños del cauce abandonado disfrutarán del mismo derecho y podrán proceder, en el transcurso del año, a la ejecución de las obras necesarias para el restablecimiento del curso primitivo.
Artículo L215-5 Cuando, como consecuencia de obras ordenadas legalmente, fuera necesario ensanchar el cauce o abrir uno
nuevo, los propietarios de las tierras ocupadas tendrán derecho a una indemnización como contrapartida de la servidumbre de paso resultante.
Para determinar la cuantía de la indemnización, se tendrá en cuenta la situación respectiva de cada uno de los propietarios ribereños con respecto al eje del nuevo cauce, y se fijarán los límites de las heredades de conformidad con lo dispuesto en el segundo párrafo del artículo L.215-2, siempre que no existieran estipulaciones en contrario.
Los edificios, patios y jardines contiguos a las viviendas quedarán exentos de la servidumbre de paso. Los conflictos que pudieran producirse por la aplicación del segundo párrafo del presente artículo así como por el
pago de las indemnizaciones serán sometidos al Tribunal de Instancia.
Artículo L215-6 La propiedad de los terrenos de aluvión, de los terrenos descubiertos por la disminución natural de las aguas, de
las zonas de aterramiento, de las islas y de los islotes que se formen en los cursos de agua de dominio privado está y quedará sujeta a lo dispuesto en los artículos 556, 557, 559 y 562 del Código Civil.
Sección II Policía y conservación de las aguas Artículos L215-7 a
L217-1
Artículo L215-7 La autoridad administrativa será la encargada de la conservación y del ejercicio de las funciones de policía de los
cursos de agua de dominio privado. Adoptará toda clase de disposiciones para garantizar el libre curso de las aguas. En cualquier caso, los derechos de terceros serán siempre respetados.
Artículo L215-8 El régimen general de estos cursos de agua será fijado, si procediera, por Orden del Ministro del que depende el
curso de agua o el tramo de agua, de tal manera que se concilien los intereses de las diversas categorías de usuarios de sus aguas, con el debido respeto a la propiedad y a los derechos y usos anteriormente establecidos, y tras consulta de utilidad pública.
Artículo L215-9 El propietario ribereño de un curso de agua de dominio privado sólo podrá realizar obras por encima de ese curso
de agua o contiguas a él, a condición de no perjudicar la escorrentía y de no causar daño alguno a las propiedades vecinas.
Artículo L215-10
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CÓDIGO DE MEDIO AMBIENTE I. - Las autorizaciones o licencias concedidas para la realización de obras o la instalación de fábricas en los cursos
de agua de dominio privado podrán ser revocadas o modificadas, sin indemnización por parte de la autoridad estatal facultada para ejercer sus potestades de policía, en los casos siguientes:
1° En interés de la salubridad pública y, especialmente, cuando dicha revocación o modificación fuera necesaria para el abastecimiento de agua potable a los centros habitados o fuera su consecuencia;
2° Para prevenir o hacer cesar las inundaciones; 3° En los casos de reglamentación general prevista en el artículo L.215-8; 4° Cuando las mismas sean relativas a las estructuras que conforman o regulan embalses, o a los establecimientos
y fábricas que, a contar desde el 30 de marzo de 1993, no hubieran sido objeto de mantenimiento durante más de veinte años. En caso de incumplimiento por parte del titular de la licencia o autorización, tras un requerimiento dirigido por el Prefecto, cualquier entidad pública u organismo público interesado podrá ejecutar, en lugar del titular, las obras que hubieran dado lugar a la revocación o modificación de la licencia o de la autorización y reclamarle el reembolso de los gastos realizados;
5° Por razones de protección medioambiental y, especialmente, cuando dichas autorizaciones sometieran los medios naturales acuáticos a condiciones hidráulicas críticas que no fueran compatibles con su preservación con arreglo a las condiciones fijadas por decreto adoptado en Conseil d'Etat.
II. - Lo dispuesto en el punto I será de aplicación a las licencias o autorizaciones concedidas en virtud de los artículos L.214-1 a L.214-6, o que hubieran sido concedidas con anterioridad a la entrada en vigor de dichas disposiciones, así como a los establecimientos en situación regular y a las empresas autorizadas según lo dispuesto en el título III de la Ley de 16 de octubre de 1919, relativa al aprovechamiento de la energía hidráulica.
III. - Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del apartado 4º del punto I.
Artículo L215-11 Los propietarios o arrendatarios de molinos y fábricas, incluso aquellos que estuvieran autorizados o en situación
regular, responderán de los daños causados a los caminos y a los predios.
Artículo L215-12 Los Alcaldes podrán, bajo la autoridad de los Prefectos, adoptar todas las medidas necesarias para ejercer las
funciones de policía de los cursos de agua.
Artículo L215-13 La derivación de las aguas de un curso de agua de dominio privado, de un manantial o de aguas subterráneas,
realizada con fines de interés general por una entidad pública o su concesionario, por una asociación de propietarios o por cualquier otro organismo público, será autorizada a través de un acta de declaración de utilidad pública de las obras.
Artículo L217-1 Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación de los artículos L.214-1 a
L.214-6, L.214-8, L.216-3 y L.216-4 a las actuaciones, obras o actividades correspondientes a instalaciones o recintos dependientes del Ministro de Defensa o sometidos a las normas de protección del secreto de defensa nacional.
Sección III Limpieza , conservación, ensanche y corrección Artículos L215-14 a
L215-24
Subsección 1 Limpieza y conservación Artículos L215-14 a
L215-19
Artículo L215-14 Sin perjuicio de lo dispuesto en los artículos 556 y 557 del Código Civil y de lo dispuesto en los capítulos I, II, IV, VI
y VII del presente título, el propietario ribereño deberá proceder a la limpieza regular para mantener el curso de agua en su anchura y profundidad naturales, a la conservación de la ribera mediante la poda y la corta a ras de tierra de la vegetación arbórea y a la eliminación de las obstrucciones y materiales de acarreo acumulados, flotantes o no, a fin de conservar el curso natural de las aguas, asegurar el buen estado de las márgenes y preservar la flora y fauna respetando el buen funcionamiento de los ecosistemas acuáticos.
Artículo L215-15 Se procederá a la limpieza y conservación de los cursos de agua de dominio privado, así como a la conservación
de las construcciones vinculadas a los mismos, de conformidad con las normas de los antiguos reglamentos o según los usos locales.
No obstante, los propietarios ribereños sólo estarán obligados a recibir en sus tierras las materias de limpieza cuando su composición no fuera incompatible con la protección de los suelos y de las aguas, principalmente en lo concerniente a los metales pesados y demás elementos que pudieran contener.
Bajo la autoridad del Ministro competente en la materia, los Prefectos serán los encargados de adoptar las medidas necesarias para la ejecución de dichos reglamentos y usos.
Artículo L215-16
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CÓDIGO DE MEDIO AMBIENTE A falta de antiguos reglamentos o usos locales, se procederá de conformidad con las disposiciones que rigen las
asociaciones de propietarios. Cuando se estimara necesaria la agrupación de asociaciones de propietarios constituidas bien por autorización,
bien de oficio, para la realización de obras de acondicionamiento de una cuenca de un curso de agua de dominio privado, de una parte de esta cuenca, o solamente del curso de agua o de un tramo del mismo, se podrá constituir de oficio una unión de estas diferentes asociaciones en las condiciones establecidas por decreto adoptado en Conseil d'Etat, aunque no existiera un consentimiento unánime por parte de las asociaciones interesadas.
El presente artículo se aplicará sin perjuicio de lo dispuesto en el artículo L.211-7.
Artículo L215-17 En todos los casos, la relación nominal de cuotas por pago de trabajos de limpieza o de conservación de las
construcciones, será elaborada bajo la supervisión del Prefecto, quien le conferirá fuerza ejecutiva. La recaudación se realizará conforme a los mismos procedimientos y con las mismas garantías que en materia de
recaudación de contribuciones directas. El derecho de cobro se situará en posición inmediatamente superior al del Tesoro Público en la prelación de
créditos.
Artículo L215-18 Todos los conflictos relativos a la ejecución de las obras, al reparto del gasto y a las solicitudes de reducción o
exención presentadas por los contribuyentes serán competencia de la jurisdicción administrativa.
Artículo L215-19 (Ley nº 2003-699 de 30 de julio de 2003 art. 58 Diario Oficial de 31 de julio de 2003)
Durante la ejecución de las obras, los propietarios estarán obligados a ceder el paso a los funcionarios y agentes encargados de la vigilancia, a los contratistas y obreros, así como a maquinaria estrictamente necesaria para la realización de los trabajos, dentro de los límites de una anchura de seis metros.
Los terrenos edificados o cerrados con muros a fecha de 3 de febrero de 1995, así como los patios y jardines contiguos a las viviendas estarán exentos de servidumbre en lo que respecta al paso de dicha maquinaria.
Este derecho se ejercerá, en la medida de lo posible, a lo largo de la ribera del curso de agua y respetando los árboles y las plantaciones existentes.
Subsección 2 Ensanche, regularización y corrección Artículo L215-20
Artículo L215-20 Sin perjuicio de las disposiciones de los artículos L.214-1 a L.214-9, la ejecución de las obras de ensanche,
regularización y corrección de los cursos de agua de dominio privado, será llevada a cabo en las condiciones previstas en los artículos L.215-16 a L.215-18.
Subsección 3 Disposiciones comunes Artículos L215-21 a
L215-24
Artículo L215-21 I. - Cualquier propietario ribereño de un curso de agua de dominio privado o asociación de propietarios ribereños
podrá someter a autorización del Prefecto un programa plurianual de conservación y gestión, que se denominará plan simple de gestión.
II. - Las ayudas del Estado y de sus organismos públicos en concepto de limpieza, conservación y restauración de los cursos de agua, serán concedidas con prioridad a los propietarios que establecieran un plan simple de gestión o que lo suscribieran.
III. - El Prefecto concederá su autorización previo dictamen, en su caso, de la Comisión Local del Agua constituida según lo dispuesto en el artículo L.212-4.
IV. - El plan incluirá: 1° Una descripción del estado inicial del curso de agua, de su cauce, de las márgenes, de la fauna y de la flora; 2° Un programa anual de trabajos de conservación y limpieza y, si fuere necesario, un programa de obras de
restauración, indicando sobre todo las técnicas que se emplearán y sus consecuencias medioambientales; 3° Un plan de financiación de la conservación, de la gestión y, si procede, de las obras de restauración. V. - El plan tendrá una validez de un período de cinco años renovable.
Artículo L215-22 Siempre que los trabajos de limpieza, conservación, ensanche, regularización y corrección fueran de interés para la
salubridad pública, la resolución que los ordene, previa aprobación del Consejo General y de los Consejos municipales interesados, podrá establecer que una parte del gasto corra a cargo de los municipios cuyo territorio hubiera sido saneado.
En este caso, la misma resolución determinará los municipios interesados y fijará el porcentaje del gasto que deberá asumir cada uno de ellos.
Artículo L215-23 Los propietarios ribereños de canales de riego sin actividad que hubieran sido cedidos por las asociaciones de
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CÓDIGO DE MEDIO AMBIENTE propietarios autorizadas, tendrán que proceder a su conservación para mantener su función de evacuación de las aguas de lluvia.
Artículo L215-24 Un decreto adoptado en Conseil d'Etat determinará, en caso de necesidad, las condiciones de aplicación de la
presente sección
Capítulo VI Sanciones Artículos L216-1 a
L216-14
Sección I Sanciones administrativas Artículos L216-1 a
L216-2
Artículo L216-1 (Ley nº 2005-157 de 23 de febrero de 2005 art. 132 IX Diario Oficial de 24 de febrero de 2005)
I. - Independientemente de la incoación de diligencias penales, en caso de incumplimiento de las disposiciones previstas en los artículos L. 211-2, L. 211-3, L. 211-5, L. 211-7, L. 211-12, L. 214-1 a L. 214-9, L. 214-11 y L. 214-12, o de los reglamentos y decisiones individuales adoptados para su aplicación, el Prefecto dirigirá un requerimiento para su cumplimiento dentro de un plazo determinado.
II. - Transcurrido dicho plazo, si el explotador o, en su defecto, el propietario de la instalación no hubiera cumplido con lo ordenado, el Prefecto podrá:
1° Obligarlo a consignar ante un contable público una suma correspondiente a la valoración del importe de los trabajos a realizar, la cual se irá restituyendo conforme se ejecute. Se procederá, en su caso, al cobro de esta suma en las mismas condiciones que las establecidas en materia de créditos del Estado no relativos al impuesto y al patrimonio;
2° Sin perjuicio de lo dispuesto en el artículo L.211-5, ordenar que se proceda de oficio a la ejecución de las medidas impuestas, con cargo al interesado. Las sumas consignadas en aplicación de lo dispuesto en el párrafo anterior podrán ser utilizadas para pagar los gastos derivados de la ejecución de oficio;
3° Suspender la autorización, si procediera, hasta la ejecución de las condiciones impuestas.
Artículo L216-2 Las decisiones adoptadas en aplicación del artículo L.216-1 podrán ser objeto de un recurso
contencioso-administrativo en las condiciones previstas en el artículo L.514-6.
Sección II Disposiciones penales Artículos L216-3 a
L216-14
Subsección 1 Comprobación de las infracciones Artículos L216-3 a
L216-5
Artículo L216-3 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 3º Diario Oficial de 3 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 132 IX Diario Oficial de 24 de febrero de 2005)
I. - Estarán facultados para proceder a la investigación y a la comprobación de las infracciones a lo dispuesto en los artículos L. 211-2, L. 211-3, L. 211-5, L. 211-7, L. 211-12, L. 214-1 a L. 214-9, L. 214-11 a L. 214-13, L. 216-6 a L. 216-8 y L. 216-10 a L. 216-12, así como en los reglamentos y disposiciones adoptados para su aplicación:
1° Los funcionarios y agentes jurados, nombrados a estos efectos de conformidad con las condiciones previstas por decreto adoptado en Conseil d'Etat y pertenecientes a los servicios del Estado competentes en materia de medio ambiente, agricultura, industria, infraestructuras, transportes, mar, salud, defensa, competencia, consumo y represión del fraude;
2° Los agentes mencionados en el artículo L. 514-5; 3° Los ingenieros y técnicos del Laboratorio Central y los inspectores de salubridad de la Prefectura de Policía; 4° Los agentes de aduanas; 5° Los agentes jurados y destinados a estos efectos en la Oficina Nacional de Caza y Fauna Silvestre y en el
Consejo Superior de Pesca; 6° Los investigadores, ingenieros y técnicos jurados del Instituto Francés de Investigación para la Explotación del
Mar; 7° Los oficiales portuarios y oficiales portuarios adjuntos; 8° Los ingenieros en activo de la Oficina Nacional Forestal y los agentes jurados de esta entidad citados en el
artículo L. 122-7 del Código Forestal; 9° Los agentes jurados y destinados en los Parques Nacionales y en las Reservas Naturales. II. - Los guardas rurales nombrados a estos efectos podrán estar facultados para proceder a la comprobación de
las infracciones mencionadas en el presente artículo en las condiciones determinadas por decreto.
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CÓDIGO DE MEDIO AMBIENTE Artículo L216-4
Con objeto de investigar y comprobar las infracciones, los agentes mencionados en el artículo L.216-3 tendrán acceso a los locales, instalaciones y lugares donde se hubieran producido los hechos que dieran lugar a las infracciones, con exclusión de los domicilios y de la parte de los locales que sirviera de domicilio a los interesados. Los propietarios y explotadores tendrán la obligación de cederles el paso. Dichos agentes sólo podrán acceder a los citados locales entre las 8 y las 20 horas, o fuera de ese horario si el establecimiento estuviera abierto al público, o se estuviera llevando a cabo una actividad.
El Fiscal de la República será previamente informado de las actuaciones previstas para la investigación de las infracciones. Podrá oponerse a estas actuaciones.
Artículo L216-5 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 3º Diario Oficial de 3 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 132 IX Diario Oficial de 24 de febrero de 2005) (Disposición nº 2005-805 de 18 de julio de 2005 art. 5 Diario Oficial de 19 de julio de 2005)
Las infracciones a lo dispuesto en los artículos L. 211-2, L. 211-3, L. 211-5, L. 211-7, L. 211-12, L. 214-1 a L. 214-9, L. 214-11 a L. 214-13, L. 216-6 a L. 216-8 y L. 216-10 a L. 216-12 y en los reglamentos dictados para su aplicación serán comprobadas por atestados y los hechos recogidos en los mismos se presumirán ciertos, salvo prueba en contrario.
Los atestados deberán ser remitidos al Fiscal de la República dentro de los cinco días siguientes a su incoación, bajo pena de nulidad. Se remitirá asimismo una copia al interesado y a la autoridad administrativa, dentro del mismo plazo. Cuando la infracción tuviera como consecuencia la destrucción de frezaderos, de zonas de crecimiento o alimentación de la fauna piscícola, o perturbara la continuidad ecológica o el caudal mínimo de los cursos de agua, se remitirá asimismo una copia de los atestados, dentro del mismo plazo, al Presidente de la Federación Departamental de las asociaciones autorizadas de pesca y piscicultura y al Presidente de la asociación autorizada de pescadores profesionales de agua dulce.
Subsección 2 Sanciones penales Artículos L216-6 a
L216-14
Artículo L216-6 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Se castigará con la pena de dos años de prisión y una multa de 75.000 euros la descarga, vertido o escorrentía a las aguas superficiales o subterráneas y a las aguas del mar dentro de los límites de las aguas territoriales, de forma directa o indirecta, de una o más sustancias de cualquier clase cuya acción o reacciones, incluso provisionalmente, causen efectos perjudiciales sobre la salud o causen daños a la flora o a la fauna, exceptuando los daños citados en los artículos L.218-73 y L.432-2, o que provoquen modificaciones significativas del régimen normal de alimentación hídrica o limitaciones del uso de las zonas de baño. Cuando una resolución autorice la operación de descarga, lo dispuesto en este párrafo sólo se aplicará si no se cumplieran las disposiciones de dicha resolución.
El Tribunal podrá asimismo imponer al condenado que proceda a la reposición del medio acuático a su estado anterior, de conformidad con el procedimiento previsto en el artículo L.216-9.
Estas mismas penas y medidas serán aplicables en caso de descargar o abandonar residuos en cantidad importante en las aguas superficiales o subterráneas y en las aguas del mar dentro de los límites de las aguas territoriales, en las playas o en las riberas del mar. Lo dispuesto anteriormente no se aplicará a los vertidos al mar efectuados desde los buques.
Artículo L216-7 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Sin perjuicio de la responsabilidad en la que se incurriera ante el beneficiario del caudal asignado, se sancionará el incumplimiento de las normas definidas en el acta de declaración de utilidad pública mencionada en el artículo L.214-9 con una multa de 12.000 euros.
Artículo L216-8 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
I. - En todo acto, operación, instalación o construcción que se realice sin la debida autorización, será castigado con una pena de dos años de prisión y una multa de 18.000 euros, el que:
1° Cometiere este acto; 2° Dirigiere o realizare esta operación; 3° Explotare esta instalación o esta construcción; 4° Realizare o participare en la realización de esta instalación o esta construcción. II. - En caso de reincidencia, la multa ascenderá a 150.000 euros. III. - En caso de condena, el Tribunal podrá ordenar que se ponga término a las operaciones, a la utilización de la
obra o de la instalación. El Tribunal podrá ordenar la ejecución provisional de esta resolución. IV. - El Tribunal podrá exigir igualmente las medidas previstas en el párrafo anterior así como la reposición de los
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CÓDIGO DE MEDIO AMBIENTE lugares a su estado anterior, de conformidad con el procedimiento previsto en el artículo L.216-9.
V.- El Tribunal que conociera de las diligencias por infracción a la obligación de declaración, podrá ordenar el cese de la operación o la prohibición de utilizar la instalación o la obra, de conformidad con el procedimiento previsto en el artículo L.216-9.
Artículo L216-9 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
En caso de acción judicial por infracción a lo dispuesto en los artículos L.216-6 y L.216-8 o por infracción a una obligación de declaración o a cualquier otra obligación derivada de lo establecido en los artículos mencionados en el artículo L.216-5, o de los reglamentos o decisiones individuales adoptados para su aplicación, el Tribunal, tras haber declarado culpable al inculpado, podrá decidir el aplazamiento de la imposición de la pena instándole a cumplir con las disposiciones que hubiera infringido.
El Tribunal otorgará un plazo para la ejecución de estas disposiciones. Podrá acompañar el requerimiento de una sanción pecuniaria, fijando su cuantía y duración máxima. La cuantía de la sanción podrá fijarse de 15 euros a 3.000 euros por día de retraso en la ejecución de las medidas impuestas.
El aplazamiento podrá otorgarse una sola vez. Podrá ser ordenado aunque el inculpado no comparezca personalmente. En todo caso, la resolución podrá ir acompañada de la ejecución provisional de la resolución de aplazamiento.
En la segunda vista, siempre que las disposiciones citadas en el requerimiento se hubieran cumplido, el Tribunal podrá dispensar de pena al culpable o imponer las penas previstas.
Cuando las disposiciones se hubieran cumplido con retraso, el Tribunal liquidará, si procede, la sanción pecuniaria e impondrá las penas previstas.
En caso de incumplimiento de las disposiciones, el Tribunal liquidará, si procede, la sanción pecuniaria, impondrá las penas y podrá ordenar que se proceda de oficio al cumplimiento de dichas disposiciones por cuenta del condenado.
La resolución judicial que contenga la pena se publicará en el plazo máximo de un año a contar desde la resolución de aplazamiento.
No se podrá modificar cuantía de la sanción pecuniaria fijada en la resolución de aplazamiento. Para la liquidación de la sanción pecuniaria, el órgano judicial valorará el incumplimiento o el retraso en el
cumplimiento de las disposiciones, teniendo en cuenta, si procede, la incidencia de acontecimientos no imputables al inculpado.
Artículo L216-10 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Será castigado con la pena de dos años de prisión y multa de 150.000 euros el que explotare una instalación o una construcción, o realizare obras, infringiendo una medida que ordene el cese del servicio, la revocación o la suspensión de una autorización o la eliminación de una instalación, o infringiendo una medida de prohibición adoptada en aplicación de lo dispuesto en el artículo L.216-5.
Será castigado con las mismas penas el que prosiguiere una operación o la explotación de una instalación o de una construcción sin dar cumplimiento al requerimiento dirigido por el Prefecto, por el cual ordena aplicar, dentro de un plazo determinado, las prescripciones técnicas previstas en la autorización o los reglamentos dictados en aplicación de lo dispuesto en el artículo L.2165.
Será castigado con la pena de seis meses de prisión y una multa de 7.500 euros el que obstaculizare el ejercicio de las funciones encomendadas a los agentes mencionados en los artículos L.211-2 y L.216-3.
Artículo L216-11 En caso de condena por infracción a lo dispuesto en el artículo L.216-5, el Tribunal podrá ordenar, por cuenta del
condenado, la publicación íntegra o por extractos de su resolución y, eventualmente, la difusión, en uno o varios periódicos, de un mensaje cuyos términos establecerá expresamente, para informar públicamente sobre los motivos y el contenido de su resolución. Podrá ordenar igualmente su publicación mediante edictos en las condiciones y bajo las penas previstas en el artículo 131-35 del Código Penal, siempre que los gastos de esta publicidad no sean superiores a la cuantía de la multa impuesta.
Artículo L216-12 I. - Las personas jurídicas podrán ser declaradas penalmente responsables de las infracciones a las disposiciones
mencionadas en el artículo L.216-5, en las condiciones previstas en el artículo 121-2 del Código Penal. II. - Las penas a las que se exponen las personas jurídicas son: 1° La multa, con arreglo a las condiciones previstas en el artículo 131-38 del Código Penal; 2° Las penas mencionadas en los apartados 2°, 3°, 4°, 5°, 6°, 8° y 9° del artículo 131-39 del mismo Código. III. - La inhabilitación mencionada en el apartado 2º del artículo 131-39 del Código Penal se aplica a la actividad en
cuyo ejercicio o con ocasión de cuyo ejercicio se hubiera cometido la infracción.
Artículo L216-13 En caso de incumplimiento de las disposiciones adoptadas en virtud de los artículos L.211-2, L.211-3 y L.214-1 a
L.214-6, se podrá acordar cualquier medida que resultara necesaria, incluso la prohibición de explotar la construcción o la instalación considerada, para poner fin a la perturbación, bien por requerimiento del Ministerio Público actuando a
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CÓDIGO DE MEDIO AMBIENTE petición de la autoridad administrativa o de una asociación que cumpla las condiciones determinadas en el artículo L.142-2, bien de oficio por el juez de instrucción que conociera de las diligencias o por el Tribunal CorrectionneL.La autoridad judicial resolverá tras haber tomado declaración al responsable de la explotación, o tras haberlo convocado debidamente a comparecer dentro de las cuarenta y ocho horas siguientes a su conocimiento. La resolución judicial será directamente ejecutable a pesar de los recursos legalmente establecidos Se podrá suspender la medida ordenada en cuanto hubiera cesado la perturbación.
Lo dispuesto en el presente artículo se aplicará igualmente a las instalaciones clasificadas en virtud del libro V (título I).
Artículo L216-14 (Introducido por la Disposición nº 2005-805 de 18 de julio de 2005 art. 6 Diario Oficial de 19 de julio de 2005)
La autoridad administrativa podrá transigir con respecto a las infracciones y delitos que se cometieran contraviniendo lo dispuesto en los puntos I a VII del presente título y en los reglamentos dictados para su aplicación, previo acuerdo del Fiscal de la República..
Esta facultad no se aplicará a las faltas leves para las que acción pública se extinguiera mediante el pago de una multa a tanto alzado en aplicación del artículo 529 del Código de Proceso Penal.
La acción pública se extinguirá cuando el autor de la infracción hubiera ejecutado, en los plazos establecidos, las obligaciones derivadas de la aceptación de la transacción.
Por decreto adoptado en Conseil d'Etat se establecerán, si fuere necesario, las condiciones de aplicación del presente artículo.
Capítulo VII Defensa Nacional
Capítulo VIII Disposiciones especiales aplicables a las aguas marinas y a las vías abiertas a la
navegación marítima Artículos L218-1 a L218-81
Sección I Contaminación producida por los vertidos de los buques Artículos L218-1 a
L218-31
Subsección 1 Responsabilidad civil y seguro obligatorio de los propietarios de buques
por los daños causados por la contaminación por hidrocarburos Artículos L218-1 a L218-9
Artículo L218-1 El propietario de un buque que transportara una carga de hidrocarburos a granel será responsable de los daños
causados por contaminación a consecuencia de una fuga o de vertidos de hidrocarburos de dicho buque en las condiciones y dentro de los límites determinados por el Convenio Internacional de 27 de noviembre de 1992 sobre responsabilidad civil por contaminación de las aguas de mar por hidrocarburos.
Para la aplicación de la presente subsección, los términos y expresiones "propietario", "buque", "suceso", "daños ocasionados por contaminación", e "hidrocarburos", tendrán el sentido que se les da en el artículo 1 del Convenio mencionado en el párrafo anterior.
Artículo L218-2 Sin perjuicio de las disposiciones del Convenio Internacional mencionado en el artículo L.218-1, relativas a los
buques que pertenecen al Estado, el propietario de un buque matriculado en un puerto francés y que transportara una carga de más de 2.000 toneladas de hidrocarburos a granel no podrá permitir que dicho buque realice actividades comerciales si no justificara, en las condiciones determinadas en el artículo VII de dicho Convenio, que tiene suscrito un seguro o constituida una garantía financiera, hasta el límite, por suceso, del valor de su responsabilidad.
Artículo L218-3 Cualquiera que fuera su lugar de matriculación, ningún buque que transportara una carga de más de 2.000
toneladas de hidrocarburos a granel podrá tener acceso a los puertos franceses, o a instalaciones de las terminales ubicadas en las aguas territoriales o interiores francesas. Tampoco podrá salir de dichos puertos o instalaciones si no poseyera un certificado acreditativo de que la responsabilidad civil de su propietario por los daños debidos a la contaminación está cubierta por un seguro o una garantía financiera en las condiciones previstas en el párrafo I del artículo VII del Convenio mencionado en el artículo L.218-1. Si el buque fuera propiedad de un Estado, tendrá que poseer un certificado que justifique que la responsabilidad de ese Estado está cubierta dentro de los límites fijados en el párrafo I del artículo V de dicho Convenio.
Artículo L218-4 Lo dispuesto en el artículo L.218-3 no será de aplicación a los buques de guerra ni a los demás buques
pertenecientes a un Estado u operados por el mismo y asignados exclusivamente a un servicio estatal no comercial.
Artículo L218-5 Además de los funcionarios y agentes de la policía judicial, estarán habilitados para investigar y comprobar las
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CÓDIGO DE MEDIO AMBIENTE infracciones a las disposiciones de la presente subsección:
1° Los administradores de asuntos marítimos; 2° Los funcionarios de la organización técnica y administrativa de asuntos marítimos; 3° Los inspectores de asuntos marítimos; 4° Los técnicos expertos del servicio de vigilancia marítima; 5° Los oficiales portuarios y oficiales portuarios adjuntos; 6° Los agentes que ejercen funciones de policía de navegación y de vigilancia de pesca marítima; 7° Los ingenieros de puentes y caminos y los ingenieros de obras públicas del Estado destinados en los servicios
marítimos, así como los agentes de dichos servicios nombrados a estos efectos; 8° Los agentes de aduanas; 9° En el extranjero, los cónsules de Francia, en todo cuanto afecta a los buques matriculados en puerto francés,
exceptuando a los agentes consulares.
Artículo L218-6 Los hechos recogidos en los atestados levantados de conformidad con el artículo L.218-5 se presumirán ciertos,
salvo prueba en contrario. Serán remitidos inmediatamente al Fiscal de la República por el agente encargado de su incoación, quien dirigirá al
mismo tiempo una copia a los servicios interesados.
Artículo L218-7 Las infracciones a lo dispuesto en la presente subsección serán juzgadas por el Tribunal competente del lugar de
la comisión de la infracción o por el Tribunal del lugar donde resida el autor de la infracción. Además, será competente el Tribunal en cuya circunscripción esté matriculado el buque si es francés, o el Tribunal
en cuya circunscripción se pueda encontrar el buque si es extranjero. A falta de otra competencia, será competente el Tribunal de Grande Instance de París.
Artículo L218-8 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Será sancionado con una multa de 75.000 euros: 1° El propietario de un buque que dejare comercializar dicho buque sin cumplir con las obligaciones previstas en el
artículo L.218-2; 2° El que saliere de un puerto o de una instalación de la terminal, o entrare, sin cumplir con las obligaciones
previstas en el artículo L.218-3.
Artículo L218-9 Un decreto adoptado en Conseil d'Etat determinará, en caso de necesidad, las condiciones de aplicación de la
presente subsección.
Subsección 2 Disposiciones penales relativas a los vertidos contaminantes de los
buques Artículos L218-10 a L218-31
Párrafo 1 Incriminations et peines Artículos L218-10 a
L218-25
Artículo L218-10 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 1 I Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Ley nº 2001-380 de 3 de mayo de 2001 art. 1 Diario Oficial de 4 de mayo de 2001) (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1°, 2º Diario Oficial de 10 de marzo de 2004)
I. - Será castigado con la pena de cuatro años de prisión y una multa de 1.000.000 de euros el capitán de un buque francés sujeto a las disposiciones del Convenio Internacional de Londres sobre la prevención de la contaminación del mar por vertimientos de desechos y otras materias, de fecha 2 de noviembre de 1973, modificado por el Protocolo de 17 de febrero de 1978 y por sus modificaciones posteriores formalmente aprobadas o ratificadas, y perteneciente a las categorías siguientes:
1° Buques tanque de arqueo bruto igual o superior a 150 toneladas; 2° Buques, que no sean buques tanque, de arqueo bruto igual o superior a 500 toneladas; por el hecho de ser culpable de infracción a las disposiciones de las reglas 9 y 10 del Anexo I del citado Convenio,
relativas a las prohibiciones de vertidos de hidrocarburos, en el sentido del punto 3 del artículo 2 del mismo. II. - Las penas previstas en el presente artículo serán aplicables al responsable de a bordo de la explotación de las
plataformas matriculadas en Francia por los vertidos al mar que se realicen infringiendo las reglas 9 y 10 del Anexo I de este Convenio.
III. - La pena de multa prevista en el punto I podrá ser aumentada hasta una cuantía equivalente al valor del buque o hasta cuatro veces el valor de la carga o mercancía transportada.
Artículo L218-11
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CÓDIGO DE MEDIO AMBIENTE (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 1 I Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Ley nº 2001-380 de 3 de mayo de 2001 art. 2 Diario Oficial de 4 de mayo de 2001) (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1°, 3º Diario Oficial de 10 de marzo de 2004)
Será castigado con la pena de dos años de prisión y una multa de 700.000 euros el capitán de un buque francés sujeto a las disposiciones del Convenio mencionado en el artículo L. 218-10 y perteneciente a las categorías siguientes:
1° Buques tanque de arqueo bruto inferior a 150 toneladas; 2° Buques, que no sean buques tanque, de arqueo bruto inferior a 500 toneladas y cuya máquina de propulsión
tenga una potencia instalada superior a 150 kilovatios. por el hecho de cometer una de las infracciones previstas en el artículo 218-10.
Artículo L218-12 (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1° Diario Oficial de 10 de marzo de 2004)
Las penas previstas en el artículo L. 218-11 serán aplicables al responsable de conducción de todo tipo de maquinaria portuaria, chalanas o barcos cisterna fluviales, ya sean automotores, remolcados o empujados, por el hecho de realizar descargas al mar infringiendo las reglas 9 y 10 del Anexo I del Convenio mencionado en el artículo L. 218-10.
Artículo L218-13 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 1 I Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Ley nº 2001-380 de 3 de mayo de 2001 art. 3 Diario Oficial de 4 de mayo de 2001) (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1°, 4° Diario Oficial de 10 de marzo de 2004)
El capitán o responsable de a bordo de un buque francés sujeto a las disposiciones del Convenio mencionado en el artículo L. 218-10, que no pertenezca a las categorías de buques definidas en los artículos L. 218-10 y L. 218-11, será castigado con una multa de 6.000 euros y además, en caso de reincidencia, con pena de un año de prisión, por el hecho de cometer una de las infracciones previstas en el artículo L. 218-10.
Artículo L218-14 (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1° Diario Oficial de 10 de marzo de 2004)
El capitán de un buque francés, sujeto a las disposiciones del Anexo II del Convenio mencionado en el artículo L. 218-10, que transportare sustancias nocivas líquidas a granel, en el sentido del punto 1 de la regla 3 de dicho Anexo, será castigado con las penas previstas en el artículo L. 218-10 por el hecho de ser culpable de infracciones a lo dispuesto en los puntos 1, 2, 7, 8 y 9 de la regla 5 de dicho Anexo, relativas a las prohibiciones de los vertidos de sustancias nocivas líquidas, definidos en el punto 3 del artículo 2 del Convenio.
Artículo L218-15 (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1° Diario Oficial de 10 de marzo de 2004)
El capitán de un buque francés, sujeto a las disposiciones del Anexo II del Convenio mencionado en el artículo L. 218-10, que transportare sustancias nocivas líquidas a granel, en el sentido del punto 1 de la regla 3 de dicho Anexo, será castigado con las penas previstas en el artículo L. 218-11 por el hecho de ser culpable de infracciones a lo dispuesto en los puntos 3, 4, 6, 11 y 9 de la regla 5 de dicho Anexo, relativas a las prohibiciones de los vertidos de sustancias nocivas líquidas, definidos en el punto 3 del artículo 2 del Convenio.
Artículo L218-16 (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1° Diario Oficial de 10 de marzo de 2004)
El capitán o responsable de a bordo de buques franceses sujetos al Convenio mencionado en el artículo L. 218-10, será castigado, según el caso, con las penas previstas en los artículos L. 218-10, L. 218-11, L. 218-13, L. 218-14, L. 218-15, L. 218-17 y L. 218-18, por el hecho de cometer las infracciones definidas en los artículos L. 218-10, L. 218-14, L. 218-15, L. 218-17 y L. 218-18 en las vías navegables hasta los límites de la navegación marítima.
Artículo L218-17 (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1° Diario Oficial de 10 de marzo de 2004)
El capitán de un buque francés que realizare descargas al mar de sustancias perjudiciales transportadas en paquetes, contenedores, tanques portátiles, camiones cisterna o vagones cisterna, será castigado con las penas previstas en el artículo L. 218-13, por el hecho de ser culpable de infracciones a lo dispuesto en la regla 7 del Anexo III del Convenio mencionado en el artículo L. 218-10, será castigado con las penas previstas en el artículo L. 218-13.
Artículo L218-18 (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1° Diario Oficial de 10 de marzo de 2004)
El capitán o responsable de a bordo de un buque francés, sujeto a las disposiciones del Convenio mencionado en el artículo L. 218-10, será castigado con las penas previstas en el artículo L. 218-11, por el hecho de ser culpable de infracciones a lo dispuesto en las reglas 3, 4, y 5 del Anexo V, relativas a las prohibiciones de vertidos en el sentido del punto 3 del artículo 2 del Convenio, o de basuras en el sentido del punto 1 de la regla 1 de dicho Anexo.
Artículo L218-19 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 1 I Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Ley nº 2001-380 de 3 de mayo de 2001 art. 4 Diario Oficial de 4 de mayo de 2001)
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CÓDIGO DE MEDIO AMBIENTE (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1° Diario Oficial de 10 de marzo de 2004)
El capitán de un buque francés al que hubiere acaecido, en el mar o en las aguas interiores y las vías navegables francesas hasta los límites de la navegación marítima, uno de los sucesos mencionados en el Protocolo I del Convenio mencionado en el artículo L. 218-10, o cualquier otra persona que esté a cargo del buque, en el sentido del artículo 1 de dicho Protocolo, será castigado con la pena de dos años de prisión y una multa de 180.000 euros, por el hecho de no redactar ni remitir un informe de acuerdo con lo dispuesto en dicho Protocolo.
Artículo L218-20 (Ley nº 2001-380 de 3 de mayo de 2001 art. 5 Diario Oficial de 4 de mayo de 2001) (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1° Diario Oficial de 10 de marzo de 2004)
Sin perjuicio de las penas previstas en la presente subsección para el capitán o el responsable de a bordo, las penas previstas en dicha subsección serán aplicables o bien al propietario, al explotador del buque, a su representante legal o dirigente de hecho si se tratara de una persona jurídica, o bien a cualquier otra persona que no sea el capitán o el responsable de a bordo, que ejerciera, de hecho o de derecho, un poder de control o de dirección en la gestión o la marcha del buque o plataforma, cuando dicho propietario, explotador del buque o persona hubiera dado origen al vertido infringiendo lo dispuesto en los artículos L. 218-10 a L. 218-19, o no hubiera adoptado las medidas necesarias para evitarlo.
Artículo L218-21 (Ley nº 2003-346 de 15 de abril de 2003 art. 3 Diario Oficial de 16 de abril de 2003) (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1°, 5º Diario Oficial de 10 de marzo de 2004)
Lo dispuesto en la presente subsección se aplicará, en las condiciones previstas en los artículos L. 218-10, L. 218-11, L. 218-13 a L. 218-19 y L. 218-22, en la zona económica a lo largo de las costas del territorio de la República y en la zona de protección ecológica definidas por la Ley nº 76-655 de 16 de julio de 1976, relativa a la zona económica y a la zona de protección ecológica a lo largo de las costas del territorio de la República, así como en las aguas territoriales, las aguas interiores y las vías navegables francesas hasta los límites de la navegación marítima, a los buques y plataformas extranjeros, aún cuando estuvieran matriculados en un territorio cuyo Gobierno no sea Parte del Convenio mencionado en el artículo L. 218-10.
No obstante, cuando la infracción fuera cometida en la zona económica o en la zona de protección ecológica a lo largo de las costas del territorio de la República, sólo se podrán imponer las multas previstas en los artículos L. 218-10, L. 218-11, L. 218-13 a L. 218-19 y L. 218-22.
Artículo L218-22 (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1°, 6º Diario Oficial de 10 de marzo de 2004)
I. - Sin perjuicio de las penas previstas en la presente subsección en materia de infracciones a las normas sobre vertidos, cuando por imprudencia, negligencia o incumplimiento de las leyes y demás disposiciones en las condiciones definidas en el artículo 121-3 del Código Penal, se hubiera producido un accidente en el mar, en el sentido del Convenio Internacional de 29 de noviembre de 1969 relativo a la Intervención en Alta Mar en los casos de accidentes que causen contaminación por hidrocarburos, se castigará al capitán o al responsable de la dirección o explotación a bordo de las plataformas o buques franceses o extranjeros que hubiere provocado dicho accidente o no hubiere adoptado las medidas necesarias para evitarlo, siempre que dicho accidente hubiera causado contaminación de las aguas territoriales, de las aguas interiores o de las vías navegables hasta los límites de la navegación marítima.
Cuando la infracción fuera cometida con un buque perteneciente a las categorías definidas en el artículo L. 218-10, o con una plataforma, el infractor será castigado con la pena de dos años de prisión y una multa de 200.000 euros.
Cuando la infracción fuera cometida con un buque, embarcación o maquinaria portuaria perteneciente a las categorías definidas en el artículo L. 218-11 y L.218-12, el infractor será castigado con la pena de un año de prisión y una multa de 90.000 euros.
Cuando la infracción fuera cometida con un buque o embarcación perteneciente a las categorías definidas en el artículo L. 218-3, el infractor será castigado con una multa de 4.000 euros.
II. - Cuando el accidente marítimo citado en el punto I estuviera directa o indirectamente causado por una infracción manifiesta y deliberada de una obligación específica de seguridad o prudencia impuesta por la ley o los reglamentos, o tuviera como consecuencia un daño irreversible o de especial gravedad para el medio ambiente, las penas serán aumentadas de la siguiente manera:
1º A cinco años de prisión y una multa 500.000 euros, cuando la infracción fuera cometida con un buque perteneciente a las categorías definidas en el artículo L. 218-10 o con una plataforma;
2º A tres años de prisión y una multa 300.000 euros, cuando la infracción fuera cometida con un buque, una embarcación o una maquinaria portuaria perteneciente a las categorías definidas en los artículos L. 218-11 y L. 218-12;
3° A una multa de 6.000 euros, cuando la infracción fuera cometida con un buque o una embarcación perteneciente a las categorías definidas en el artículo L. 218-3.
Cuando la infracción fuera cometida con un buque perteneciente a las categorías definidas en los artículos L. 218-10, L. 218-11 y L. 218-12 o con una plataforma, la multa podrá ser aumentada hasta una cuantía equivalente al valor del buque o hasta el doble del valor de la carga o mercancía transportada.
III.- Cuando se reunieran las dos circunstancias citadas en el párrafo primero del punto II, las penas serán aumentadas de la siguiente manera:
1º A siete años de prisión y una multa 700.000 euros, cuando la infracción fuera cometida con un buque perteneciente a la categoría definida en el artículo L. 218-10;
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CÓDIGO DE MEDIO AMBIENTE 2º A cinco años de prisión y una multa 500.000 euros, cuando la infracción fuera cometida con un buque
perteneciente a las categorías definidas en los artículos L. 218-11 y L. 218-12; La sanción de multa prevista en el punto I podrá ser aumentada hasta una cuantía equivalente al valor del buque o
hasta el doble del valor de la carga o mercancía transportada. IV. - Las penas previstas en los puntos I y II serán aplicables bien al propietario, bien al explotador del buque, bien
a su representante legal o dirigente de hecho si se tratara de una persona jurídica, bien a cualquier otra persona que no fuera el capitán o el responsable de a bordo, que ejerciera de hecho o de derecho un poder de control o de dirección en la gestión o la marcha del buque o plataforma, cuando dicho propietario, explotador o persona hubiera causado una contaminación en las condiciones establecidas en el presente artículo.
V. - En virtud del presente artículo, no se castigará al responsable de un vertido cuando el mismo sea consecuencia de medidas que tuvieran por objeto evitar un peligro grave e inminente que amenazara la seguridad de los buques, la vida humana o el medio ambiente.
Artículo L218-23 (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1° Diario Oficial de 10 de marzo de 2004)
Lo dispuesto en los artículos L. 218-10 a L. 218-20 ambos inclusive y L. 218-22 no será de aplicación a los buques, plataformas o embarcaciones marítimas o fluviales de cualquier índole pertenecientes a la Marina Nacional, a los servicios de Policía o de Gendarmería, a la Administración de Aduanas, a la Administración de Asuntos Marítimos o, en general, a toda clase de buques del Estado utilizados en operaciones policiales o que realicen misiones de servicio público en el mar.
Artículo L218-24 (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1°, 7º Diario Oficial de 10 de marzo de 2004)
I. - Teniendo en cuenta las circunstancias de hecho y, especialmente, las condiciones de trabajo del interesado, el Tribunal podrá decidir que el pago total o parcial de las multas impuestas al capitán o al responsable de a bordo, en virtud de lo dispuesto en los artículos L. 218-10 a L. 218-22, corra por cuenta del explotador del buque o del propietario.
El Tribunal sólo podrá hacer uso de la facultad prevista en el párrafo anterior cuando el propietario o el explotador del buque hubiera sido emplazado a comparecer en la audiencia.
II. - Las personas físicas culpables de las infracciones previstas en la presente subsección podrá ser sancionadas asimismo, como pena accesoria, a la publicación de la resolución mediante edictos o difusión de la misma en las condiciones previstas en el artículo 131-35 del Código Penal.
Artículo L218-25 (Ley nº 2001-380 de 3 de mayo de 2001 art. 7 Diario Oficial de 4 de mayo de 2001) (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1°, 8º Diario Oficial de 10 de marzo de 2004)
I. - Las personas jurídicas podrán ser declaradas penalmente responsables en las condiciones previstas en el artículo 121-2 del Código Penal de las infracciones definidas en la presente subsección. Podrán ser sancionadas con la pena de multa, en las condiciones previstas en el artículo 131-38 del Código Penal.
II. - En el caso de las infracciones definidas en los artículos L. 218-10 a L.218-22, podrán asimismo ser sancionadas con la pena establecida en el apartado 9° del Código Penal.
Párrafo 2 Procédures Artículos L218-26 a
L218-31
Artículo L218-26 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 4º Diario Oficial de 3 de julio de 2003) (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1° Diario Oficial de 10 de marzo de 2004)
I. - Además de los funcionarios y agentes de la policía judicial, quienes ejercieran sus facultades según lo dispuesto en el Código de Proceso Penal, estarán habilitados para comprobar las infracciones a lo dispuesto en las reglas 9, 10 y 20 del Anexo I, en la regla 5 del Anexo II, en la regla 7 del Anexo III, en las reglas 3, 4 y 5 del Anexo V y en el Protocolo I del Convenio Internacional relativo a la Prevención de la Contaminación por los buques mencionados en el artículo L. 218-10, de las infracciones a lo dispuesto en la presente subsección, así como de las infracciones a las disposiciones reglamentarias adoptadas para su aplicación:
1° Los administradores de asuntos marítimos; 2° Los funcionarios de la organización técnica y administrativa de asuntos marítimos; 3° Los inspectores de asuntos marítimos; 4° Los técnicos expertos del servicio de vigilancia marítima; 5° Los controladores de asuntos marítimos; 6° El personal embarcado de asistencia y de vigilancia de asuntos marítimos; 7° Los funcionarios y agentes jurados y destinados en los servicios marítimos y en los puertos autónomos; 8° Los ingenieros de minas y los ingenieros de obras públicas del Estado destinados en la Dirección Regional de
Industria, Investigación y Medio Ambiente interesada; 9° Los oficiales portuarios y oficiales portuarios adjuntos; 10° Los investigadores, ingenieros y técnicos jurados del Instituto Francés de Investigación para la Explotación del
Mar; 11° Los agentes de aduanas;
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CÓDIGO DE MEDIO AMBIENTE 12° En el extranjero, los cónsules de Francia, exceptuando a los agentes consulares. II. - Además, las infracciones a lo dispuesto en las reglas 9 y 10 del Anexo I, en la regla 5 del Anexo II, en la regla 7
del Anexo III y en las reglas 3, 4 y 5 del Anexo V del Convenio anteriormente mencionado podrán ser comprobadas por los comandantes, segundos comandantes o segundos oficiales de Buques de la Marina Nacional y por los jefes de a bordo de las aeronaves de la Marina Nacional.
Artículo L218-27 (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1° Diario Oficial de 10 de marzo de 2004)
Estarán facultados para investigar las infracciones que constituyen delito de contaminación de las aguas del mar, para recabar todas las informaciones con objeto de descubrir a los autores de dichas infracciones y para informar de las mismas a un funcionario de la policía judicial que ejerza sus facultades según lo dispuesto en el Código de Proceso Penal, o a un funcionario o inspector de asuntos marítimos:
1° Los comandantes de buques oceanográficos del Estado; 2° Los comandantes de a bordo de las aeronaves de Protección Civil y de las aeronaves del Estado destinados a la
vigilancia de las aguas marítimas; 3° Los agentes del servicio de faros y balizas; 4° Los agentes del Instituto Francés de Investigación para la Explotación del Mar; 5° Los agentes de la policía de pesca fluvial.
Artículo L218-28 (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1° Diario Oficial de 10 de marzo de 2004)
Los hechos recogidos en los atestados realizados por los agentes mencionados en el artículo L. 218-26 se presumirán ciertos, salvo prueba en contrario. Serán remitidos inmediatamente al Fiscal de la República por el agente encargado de su incoación, quien remitirá también una copia al Administrador de Asuntos Marítimos cuando se trate de buques o plataformas, o al ingeniero de puentes y caminos encargado del servicio marítimo cuando se trate de maquinarias portuarias, chalanas o barcos cisterna fluviales.
Artículo L218-29 (Ley nº 2001-380 de 3 de mayo de 2001 art. 6 Diario Oficial de 4 de mayo de 2001) (Ley nº 2003-346 de 15 de abril de 2003 art. 4 Diario Oficial de 16 de abril de 2003) (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1°, 9º Diario Oficial de 10 de marzo de 2004)
Las normas relativas a la competencia de los órganos jurisdiccionales penales competentes para conocer de las infracciones tipificadas en la presente subsección estarán sujetas a lo dispuesto en los artículos 706-107 a 706-111 del Código de Proceso Penal reproducidos a continuación:
Art. 706-107. - Para la investigación, la persecución, la instrucción y, si se tratara de delitos, el enjuiciamiento de las infracciones en materia de contaminación de aguas marinas y de vías abiertas a la navegación marítima previstas y castigadas por la subsección 2 de la sección 1 del capítulo VIII del título I del libro II del Código de Medio Ambiente, cometidos en las aguas territoriales, las aguas interiores y las vías navegables, la competencia de un Tribunal de Grande Instance podrá extenderse a la demarcación de una o varias Cours d'appel. Las disposiciones del primer párrafo se aplicarán igualmente cuando las infracciones mencionadas en el mismo, exceptuando la contemplada en el artículo L. 218-22 del Código de Medio Ambiente, se hubieran cometido en la zona económica exclusiva o en la zona de protección ecológica.
No obstante, en los asuntos que son o aparentan una gran complejidad, el Fiscal de la República ante el Tribunal de Grande Instance mencionado en el primer párrafo podrá requerir al juez de instrucción, en las condiciones y según las modalidades previstas por los artículos 706-110 y 706-111 para que se inhiba en favor del Tribunal de Grande Instance de París.
Esta competencia se extenderá a las infracciones conexas. Por decreto se establecerán el listado y la demarcación de los órganos jurisdiccionales del litoral marítimo,
incluyendo una sección de la fiscalía y formaciones de instrucción y enjuiciamiento especializadas para conocer de dichas infracciones.
Art. 706-108. - Para la investigación, la persecución, la instrucción y el enjuiciamiento de las infracciones previstas en el artículo 706-107 cometidas fuera de los espacios marítimos bajo jurisdicción francesa a bordo de un navío francés, el Tribunal de Grande Instance competente será el Tribunal de Grande Instance de París.
El Tribunal de Grande Instance de París será igualmente competente para la investigación, la persecución, la instrucción y el enjuiciamiento de la infracción prevista en el artículo L. 218-22 del Código de Medio Ambiente, así como de las infracciones conexas, cuando dichas infracciones hayan sido cometidas en la zona económica exclusiva o en la zona de protección ecológica.
Art. 706-109. - El Fiscal de la República, el juez de instrucción, la formación correccional especializada del Tribunal de Grande Instance mencionada en el artículo 706-107 ejercerán, en toda la extensión de la demarcación fijada en aplicación de este artículo, una competencia concurrente con la que resulte de la aplicación de los artículos 43, 52, 382 y 706-42.
Ejercerán igualmente, en las mismas condiciones, una competencia concurrente con la que resulte de los criterios de atribución de competencia siguientes:
1º Lugar de matriculación del buque, embarcación o plataforma o de su dependencia aduanera; 2º Lugar donde el buque, embarcación o plataforma se halle o pueda hallarse. La jurisdicción especializada encargada seguirá siendo competente, cualesquiera que sean las incriminaciones
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CÓDIGO DE MEDIO AMBIENTE derivadas de su tramitación o del enjuiciamiento del asunto. Sin embargo, si los hechos constituyeran una falta, el juez de instrucción procederá a la remisión del asunto ante el Tribunal de Police competente en aplicación del artículo 522.
Art. 706-110. - El Fiscal de la República, ante un Tribunal de Grande Instance distinto de los previstos en el artículo 706-107 podrá, para las infracciones a las que se refiere este artículo, requerir al juez de instrucción para que se inhiba a favor del órgano jurisdiccional de instrucción competente por aplicación de este artículo. Las partes serán previamente advertidas e invitadas a hacer sus alegaciones por el juez de instrucción. La resolución se dictará no antes de ocho días y no más tarde de un mes desde que se produjera dicha advertencia.
Cuando el juez de instrucción decidiera inhibirse, su resolución no tendrá efecto hasta transcurrido el plazo de cinco días previsto por el artículo 706-111. Cuando se interpusiera un recurso en aplicación de este artículo, el juez de instrucción continuará siendo competente hasta que llegue a su conocimiento el auto de la sala de instrucción, que haya adquirido firmeza, o el de la sala criminal de la Cour de Cassation.
Una vez que la resolución sea firme, el Fiscal de la República enviará el expediente del procedimiento al fiscal ante el tribunal competente en aplicación del artículo 706-109.
Las disposiciones del presente artículo serán aplicables ante la sala de instrucción. Art. 706-111. - La resolución dictada en aplicación del artículo 706-110 podrá, con exclusión de cualquier otra
posibilidad de recurso, ser deferida en los cinco días siguientes a su notificación, a requerimiento del fiscal o de las partes, bien a la sala de instrucción si la jurisdicción especializada a favor de la que la inhibición hubiera sido ordenada o rechazada se halla en la demarcación de la Cour d'Appel a la que pertenece el órgano jurisdiccional inicialmente encargado, bien, en caso contrario, a la sala criminal de la Cour de Cassation. La sala de instrucción o la sala criminal designará, en los ocho días siguientes a la fecha de recepción de los autos, al juez de instrucción encargado de proseguir la investigación. El Ministerio Público podrá igualmente acudir directamente a la sala de instrucción o a la sala criminal de la Cour de Cassation cuando el juez de instrucción no hubiera dictado su resolución en el plazo de un mes previsto en el primer párrafo del artículo 706-110.
El auto de la sala de instrucción o de la sala criminal se pondrá en conocimiento del juez de instrucción y del Ministerio Público y se notificará a las partes.
Las disposiciones del presente artículo serán aplicables al auto de la sala de instrucción dictado con fundamento en el último párrafo del artículo 706-110; en tal caso el recurso se sustanciará ante la sala criminal.
Artículo L218-30 (Ley nº 2001-380 de 3 de mayo de 2001 art. 8 Diario Oficial de 4 de mayo de 2001) (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1° Diario Oficial de 10 de marzo de 2004)
El buque con el que se hubiera cometido una de las infracciones definidas en los artículos L. 218-10 a L. 218-22 podrá ser inmovilizado por resolución del Fiscal de la República o del Juez de Instrucción encargado de las diligencias.
Los gastos de inmovilización correrán por cuenta del armador. En cualquier momento, la autoridad judicial competente podrá ordenar el levantamiento de la inmovilización
condicionándolo a la prestación de una fianza cuya cuantía y forma de pago fijará. Las condiciones de asignación, empleo y devolución de la fianza serán reguladas según lo dispuesto en los
artículos 142, 142-2 y 142-3 del Código de Proceso Penal.
Artículo L218-31 (Ley nº 2004-204 de 9 de marzo de 2004 art. 30 1° Diario Oficial de 10 de marzo de 2004)
Si los hechos constitutivos de las infracciones enumeradas en los artículos L. 218-10 a L. 218-22 hubieran causado daños al dominio público marítimo, la Administración sólo podrá reclamar ante la jurisdicción administrativa la reparación de este daño conforme al procedimiento en materia de infracciones relativas a las grandes vías marítimas y fluviales.
Sección II Contaminación causada por las operaciones de exploración o de explotación
del fondo del mar o de su subsuelo Artículos L218-32 a L218-41
Artículo L218-32 Sin perjuicio de la aplicación de lo dispuesto en el Código de Minería, especialmente de sus artículos 79, 84 y 85, y
en los reglamentos dictados para su ejecución al conjunto de las actividades de exploración y explotación de los recursos naturales de la plataforma continental, se prohibirá todo vertido al mar de hidrocarburos o de mezclas de hidrocarburos que sean susceptibles de perjudicar la salud pública, la fauna y la flora marinas, y el desarrollo económico y turístico de las regiones costeras.
Los vertidos que procedan directamente de las operaciones de exploración tendrán que estar exentos de hidrocarburos.
Los vertidos que procedan directamente de las operaciones de explotación, incluido el almacenamiento, no podrán tener un contenido medio de hidrocarburos superior a 20 partes por millón, ni tener por efecto verter en el mar un volumen medio de hidrocarburos superior a 2 centilitros por día y por hectárea de la superficie concedida en la autorización de explotación.
Se podrá imponer, por vía reglamentaria, disposiciones más restrictivas que las previstas en el párrafo anterior, en función de las condiciones locales o particulares de la explotación o de la protección del medio ambiente.
No se podrá emprender ninguna operación de explotación antes de la elaboración, por cuenta del titular de la autorización de explotación, de un informe biológico y ecológico del medio marino en la zona de aplicación de dicha
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CÓDIGO DE MEDIO AMBIENTE autorización. Este informe tendrá que ser renovado al menos una vez al año durante el período de validez de la autorización de explotación.
- Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente artículo.
Artículo L218-33 Lo dispuesto en la subsección 2 de la sección 1 del presente capítulo será de aplicación a: 1° Las instalaciones o dispositivos siguientes, cuando dichas instalaciones o dispositivos no estén en curso de
exploración o de explotación: a) Plataformas y demás artefactos de exploración o de explotación, así como sus anexos; b) Buques que participen directamente en las operaciones de exploración o explotación; 2° Las operaciones de dichas instalaciones o dispositivos que no estén directamente vinculadas con las actividades
de exploración o de explotación.
Artículo L218-34 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
I. - Se castigará con pena de dos años de prisión y una multa de 18.000 euros toda infracción a las disposiciones del artículo. 218-32.
II. - Cuando la infracción fuera cometida por orden del titular de la autorización de exploración o explotación, de su representante o de la persona que asume a bordo de estas instalaciones y dispositivos la dirección de los trabajos de exploración o explotación, incluido el almacenamiento, éstos estarán sujetos a las penas previstas en el párrafo anterior aumentadas al doble.
III. - Se considerará cómplice de la infracción al representante del titular de la autorización de exploración o explotación que, asumiendo la responsabilidad de dichas operaciones, no hubiera dado por escrito la orden de cumplir con las disposiciones de los párrafos 1 a 4 del artículo L.218-32 a la persona que asuma directamente in situ la dirección de los trabajos.
IV. - No obstante, cuando se hubieran adoptado todas las medidas necesarias para cumplir con lo dispuesto en el artículo L.218-32, no constituirá una infracción:
1° El vertido cuyo objeto sea garantizar la seguridad de una instalación o de un dispositivo citado en el artículo L.218-33, o evitar una avería grave que ponga en peligro la seguridad de las personas o la protección del medio ambiente, o salvar vidas humanas en el mar;
2° El escape procedente de una avería o de una fuga imprevisible e inevitable, si tras la avería o al descubrir la fuga se hubieran adoptado todas las medidas necesarias para impedir, detener o reducir ese escape a fin de reducir sus consecuencias.
Artículo L218-35 Lo dispuesto en los artículos L.218-32 a L.218-34 será de aplicación en las aguas territoriales, sin perjuicio de las
medidas más restrictivas que puedan ser adoptadas en aplicación de las disposiciones del Código de Minería o en concepto de protección de la pesca y cultivos marinos.
Artículo L218-36 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 4º Diario Oficial de 3 de julio de 2003)
I. - Estarán encargados de investigar las infracciones previstas en la presente sección: 1° Los funcionarios y agentes de la policía judicial; 2° Los administradores de asuntos marítimos; 3° Los funcionarios de la organización técnica y administrativa de asuntos marítimos; 4° Los comandantes, segundos comandantes o segundos oficiales de buques de la Marina Nacional; 5° Los inspectores de asuntos marítimos; 6° Los ingenieros de minas y los ingenieros de obras públicas del Estado destinados en la Dirección Regional de
Industria, Investigación y Medio Ambiente interesada; 7° Los ingenieros de puentes y caminos y los ingenieros de obras públicas del Estado destinados en los servicios
marítimos, así como los agentes de dichos servicios nombrados a estos efectos; 8° Los oficiales portuarios y oficiales portuarios adjuntos; 9° Los agentes de aduanas. II. - Estarán encargados de investigar los hechos que constituyan un delito de contaminación de las aguas
marítimas, de recabar cualquier información con objeto de descubrir a sus autores y de informar de éstas bien a un administrador de asuntos marítimos, un funcionario de la organización técnica y administrativa de asuntos marítimos o un inspector de asuntos marítimos, bien a un funcionario de la policía judicial:
1° Los agentes de policía de navegación y de vigilancia de pesca marítima; 2° Los comandantes de buques oceanográficos del Estado; 3° Los comandantes de a bordo de las aeronaves militares, de las aeronaves de protección civil y de las aeronaves
del Estado destinados a la vigilancia de las aguas marítimas; 4° Los agentes del servicio de faros y balizas; 5° Los agentes del Instituto Francés de Investigación para la Explotación del Mar;
Artículo L218-37 Los hechos recogidos en los atestados levantados de conformidad con el artículo L.218-36 se presumirán ciertos,
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CÓDIGO DE MEDIO AMBIENTE salvo prueba en contrario. Serán remitidos inmediatamente al Fiscal de la República por el agente encargado de su incoación, quien remitirá también una copia al jefe del distrito minero competente y al jefe de servicio de asuntos marítimos.
Artículo L218-38 Incluso en caso de diligencias penales, la Administración tendrá la facultad de reclamar la reparación de los daños
causados al dominio público, con arreglo al procedimiento en materia de infracciones relativas a las grandes vías marítimas o fluviales.
Artículo L218-39 Las instalaciones y dispositivos definidos en el artículo L.218-33 y las zonas de seguridad que pueden establecerse
hasta una distancia de 500 metros a partir de cada punto del borde exterior de los mismos, estarán sujetos al derecho material y procesal penal en vigor en la sede del Tribunal de Grande Instance o del Tribunal de Primera Instancia bajo cuya circunscripción se hallen
Artículo L218-40 Las condiciones de adaptación de la presente sección a las operaciones realizadas en la plataforma continental
adyacente a las entidades territoriales de Ultramar y, en caso de necesidad, en el fondo marino territorial, serán determinadas por decreto adoptado en Conseil d'Etat.
Lo dispuesto en la presente sección será de aplicación al fondo marino y a su subsuelo en la zona económica definida en el artículo 1 de la Ley nº 76-655 de 16 de julio de 1976, relativa a la zona económica a lo largo de las costas de la República.
Artículo L218-41 Las condiciones de aplicación de la presente sección serán determinadas por decreto adoptado en Conseil d'Etat,
principalmente en lo relativo al artículo L.218-39.
Sección III Contaminación causada por las operaciones de inmersión Artículos L218-42 a
L218-58
Subsección 1 Autorizaciones Artículos L218-42 a
L218-47
Artículo L218-42 (Disposición nº 2005-805 de 18 de julio de 2005 art. 12 Diario Oficial de 19 de julio de 2005)
Lo dispuesto en la presente sección será aplicable a: 1º Los buques, aeronaves, plataformas u otras construcciones francesas en el mar, en el lecho del mismo y en su
subsuelo; 2º Los buques, aeronaves, plataformas u otras construcciones extranjeras en la zona económica, la zona de
protección ecológica, el mar territorial y las aguas interiores francesas, así como en su lecho y subsuelo.
Artículo L218-43 (Disposición nº 2005-805 de 18 de julio de 2005 art. 12 Diario Oficial de 19 de julio de 2005)
Se prohibirá la inmersión de residuos u otras materias tal como está definida en el artículo 1° del Protocolo de 7 de noviembre que modifica el Convenio de Londres de 1972 sobre la contaminación de la contaminación del mar por vertimientos de desechos y otras materias.
Artículo L218-44 (Disposición nº 2005-805 de 18 de julio de 2005 art. 12 Diario Oficial de 19 de julio de 2005)
I. - Por excepción a lo dispuesto en el artículo L. 218-43, se podrá autorizar: 1º La inmersión de escombros de dragados; 2º La inmersión de buques por orden del representante del Estado en el mar, sin perjuicio del debido respeto a los
tratados y acuerdos internacionales en vigor. II. - La inmersión de escombros de dragados estará sujeta a los dispuesto en los artículos L. 214-1 a L. 214-4 y L.
214-10. III. - Las autorizaciones de inmersión que hubiesen sido concedidas anteriormente a la publicación de la
Disposición n° 2005-805 de 18 de julio de 2005 se mantendrán hasta la expiración de las mismas, sin que su duración total pueda exceder de diez años.
Artículo L218-45 (Ley nº 2003-346 de 15 de abril de 2003 art. 5 Diario Oficial de 16 de abril de 2003) (Disposición nº 2005-805 de 18 de julio de 2005 art. 12 Diario Oficial de 19 de julio de 2005)
Lo dispuesto en los artículos L. 218-43 y L. 218-44 no será de aplicación cuando, en caso de grave peligro, la inmersión fuera considerada como el único medio para proteger a las personas o para garantizar la seguridad de los buques, aeronaves, plataformas u otras construcciones. Siempre que sea posible, dicha inmersión se efectuará intentando conciliar los imperativos de seguridad y las exigencias de conservación de la fauna y la flora marinas.
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CÓDIGO DE MEDIO AMBIENTE Artículo L218-46 (Disposición nº 2005-805 de 18 de julio de 2005 art. 12 Diario Oficial de 19 de julio de 2005)
En cualquier caso, los derechos de terceros ante los autores de la contaminación serán siempre respetados.
Artículo L218-47 (Disposición nº 2005-805 de 18 de julio de 2005 art. 12 Diario Oficial de 19 de julio de 2005)
Aún cuando se halle en tramitación un proceso penal, la Administración tendrá la facultad de reclamar la reparación de los daños causados al dominio público, con arreglo al procedimiento en materia de infracciones relativas a las grandes vías marítimas o fluviales.
Subsección 2 Disposiciones penales Artículos L218-48 a
L218-58
Artículo L218-48 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Disposición nº 2005-805 de 18 de julio de 2005 art. 13 Diario Oficial de 19 de julio de 2005)
Será castigado con la pena de dos años de prisión y una multa de 18.000 euros el capitán de un buque, el comandante de a bordo de una aeronave o toda persona que asuma la dirección de las operaciones de inmersión desde plataformas u otras construcciones, por el hecho de cometer infracciones a lo dispuesto en los artículos L. 218-43 y L. 218-44.
Las personas físicas culpables de las infracciones previstas en la presente sección podrán ser sancionadas, como pena accesoria, a la publicación de la resolución mediante edictos o difusión de la misma en las condiciones previstas en el artículo 131-35 del Código Penal.
Cuando la infracción fuera cometida por ciudadanos extranjeros en la zona económica o en la zona de protección ecológica a lo largo de las costas del territorio de la República, sólo se podrán imponer las multas previstas por el Convenio de Montego Bay de 10 de diciembre de 1982.
Artículo L218-49 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Disposición nº 2005-805 de 18 de julio de 2005 art. 16 Diario Oficial de 19 de julio de 2005)
En los casos previstos en el artículo L. 218-45, las inmersiones tendrán que ser notificadas cuanto antes, por una de las personas citadas en el artículo L. 218-48, al representante del Estado en el mar, bajo pena de multa de 3.750 euros
Esta notificación detallará las circunstancias de las inmersiones.
Artículo L218-50 (Disposición nº 2005-805 de 18 de julio de 2005 art. 16 Diario Oficial de 19 de julio de 2005)
Sin perjuicio de las penas previstas en el artículo L. 218-48, si una de las infracciones hubiera sido cometida por orden del propietario o del explotador del buque, aeronave, plataforma u otra construcción, este propietario o explotador será castigado con las penas previstas en dicho artículo aumentadas al doble.
Todo propietario o explotador de un buque, aeronave, plataforma u otra construcción que no hubiera dado la orden por escrito al capitán, al comandante de a bordo o a la persona que asume la dirección de las operaciones de inmersión desde la plataforma u otra construcción, de cumplir con las disposiciones de la presente sección, podrá ser considerado cómplice de las infracciones en ella previstas.
Cuando el propietario o explotador fuera una persona jurídica, la responsabilidad prevista en los dos párrafos anteriores incumbirá a aquél o aquéllos de los representantes legales o dirigentes de hecho que asumen la dirección o la administración, o a cualquier persona habilitada por ellos.
Artículo L218-51 (Disposición nº 2005-805 de 18 de julio de 2005 art. 16 Diario Oficial de 19 de julio de 2005)
Las penas previstas en el artículo L. 218-48 se aplicarán a al capitán de buque y al comandante de a bordo que, sin contar con una de las autorizaciones previstas en la presente sección, embarquen o carguen en territorio francés residuos u otras materias destinadas a la inmersión en el mar.
Artículo L218-52 (Disposición nº 2005-805 de 18 de julio de 2005 art. 14 Diario Oficial de 19 de julio de 2005)
En caso de incumplimiento de alguna de las condiciones fijadas por las autorizaciones previstas en el artículo L. 218-44, se aplicarán las penas señaladas en el artículo L. 218-48, según el caso, al titular de la autorización, al propietario de residuos u otras materias destinadas a la inmersión en el mar, o a las personas citadas, respectivamente, en los artículos L. 218-48, L. 218-50 y L. 218-51.
Artículo L218-53 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 4º Diario Oficial de 3 de julio de 2003)
I. - Además de los funcionarios y agentes de la policía judicial, estarán habilitados para investigar y comprobar las infracciones a las disposiciones de la presente sección:
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CÓDIGO DE MEDIO AMBIENTE 1° Los administradores de asuntos marítimos, los inspectores de asuntos marítimos, los funcionarios de la
organización técnica y administrativa de asuntos marítimos, los técnicos expertos del servicio de vigilancia marítima; 2° Los ingenieros de puentes y caminos y los ingenieros de obras públicas del Estado destinados en los servicios
marítimos, así como los agentes de dichos servicios nombrados a estos efectos; 3° Los ingenieros de minas y los ingenieros de obras públicas del Estado destinados en la Dirección Regional de
Industria, Investigación y Medio Ambiente interesada; 4° Los oficiales portuarios y oficiales portuarios adjuntos, los agentes que ejercen las funciones de policía de
navegación y de vigilancia de pesca marítima; 5° Los comandantes, segundos comandantes o segundos oficiales de buques de la Marina Nacional; 6° Los funcionarios de la organización técnica de aviación civil nombrados a estos efectos, los ingenieros de
puentes y caminos y los ingenieros de obras públicas del Estado encargados de las bases aéreas; 7° Los ingenieros de armamento y los técnicos aeronáuticos de estudios y fabricación nombrados a estos efectos; 8° Los investigadores, ingenieros y técnicos jurados del Instituto Francés de Investigación para la Explotación del
Mar; 9° Los agentes de aduanas; 10° En el extranjero, los cónsules de Francia, exceptuando a los agentes consulares. II. - Estarán facultados para investigar las infracciones a lo dispuesto en la presente sección, para recabar todas las
informaciones con el objeto de descubrir a sus autores y para informar de éstas bien a un administrador de asuntos marítimos, un funcionario de la organización técnica y administrativa de asuntos marítimos o un inspector de asuntos marítimos, bien a un ingeniero de obras públicas del Estado destinado en un servicio marítimo, bien a un funcionario de la policía judicial:
1° Los comandantes de buques oceanográficos del Estado; 2° Los jefes de a bordo de las aeronaves militares, de las aeronaves de protección civil y de las aeronaves del
Estado destinados a la vigilancia de las aguas marítimas; 3° Los agentes del Instituto Francés de Investigación para la Explotación del Mar;
Artículo L218-54 Los hechos recogidos en los atestados realizados de conformidad con el artículo L. 218-53 se presumirán ciertos,
salvo prueba en contrario. Serán remitidos inmediatamente al Fiscal de la República por el agente encargado de su incoación, quien remitirá al mismo tiempo una copia a los servicios interesados.
Artículo L218-55 (Disposición nº 2005-805 de 18 de julio de 2005 art. 16 Diario Oficial de 19 de julio de 2005)
Cuando las necesidades de la investigación o de la información y la gravedad de la infracción lo exijan, se podrá inmovilizar el buque, la aeronave, la plataforma u otra construcción con la que se hubiera cometido una de las infracciones citadas en los artículos L. 218-48, L. 218-50, L. 218-51 y L. 218-52, mediante resolución del Fiscal de la República o del Juez de Instrucción encargado de las diligencias.
En cualquier momento, la autoridad judicial competente podrá ordenar el levantamiento de la inmovilización condicionándolo a la prestación de una fianza cuya cuantía y forma de pago fijará.
Las condiciones de asignación, empleo y devolución de la fianza serán reguladas según lo dispuesto en los artículos 142, 142-2 y 142-3 del Código de Proceso Penal.
Artículo L218-56 (Disposición nº 2005-805 de 18 de julio de 2005 art. 16 Diario Oficial de 19 de julio de 2005)
I. - Las infracciones a lo dispuesto en la presente sección serán juzgadas por el Tribunal competente del lugar de comisión de la infracción o por el Tribunal del lugar donde resida el autor de la infracción.
II. - Serán asimismo competentes: 1° Cuando se tratara de un buque, plataforma u otra construcción, el Tribunal en cuya circunscripción estuviera
matriculado; cuando fuera extranjera o se tratara de un artefacto o plataforma sin matricular, el Tribunal en cuya circunscripción se hubiera encontrado;
2° Cuando se tratara de una aeronave, el Tribunal del lugar de aterrizaje del vuelo durante el cual se hubiera cometido la infracción.
III. - A falta de otra competencia, será competente el Tribunal de Grande Instance de París.
Artículo L218-57 I. - Las personas jurídicas podrán ser declaradas penalmente responsables, en las condiciones previstas en el
artículo 121-2 del Código Penal, de las infracciones a lo dispuesto en la presente sección. II. - Las penas que se podrán imponer a las personas jurídicas son: 1° La multa, en las condiciones previstas en el artículo 131-38 del Código Penal; 2° Las penas mencionadas en los apartados 2°, 3°, 4°, 5°, 6°, 8° y 9° del artículo 131-39 del mismo Código. III. - La inhabilitación mencionada en el apartado 2º del artículo 131-39 del Código Penal se refiere a la actividad en
cuyo ejercicio o con ocasión de cuyo ejercicio se hubiera cometido la infracción.
Artículo L218-58 El control de la aplicación de lo dispuesto en la presente sección a los buques y aeronaves militares franceses será
ejercido por los agentes de los servicios dependientes del Ministerio de Defensa. Las penas previstas en la presente sección serán aplicables a las personas sujetas a las jurisdicciones militares de
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CÓDIGO DE MEDIO AMBIENTE las Fuerzas Armadas, de conformidad con lo dispuesto en el Código de Justicia Militar y, en especial, en sus artículos 165 y 171.
Subsección 3 Defensa Nacional Artículo L218-58
Artículo L218-58 (Disposición nº 2005-805 de 18 de julio de 2005 art. 15 Diario Oficial de 19 de julio de 2005)
El representante del Estado en el mar podrá autorizar la inmersión de municiones cuando la destrucción de las mismas no pudiera realizarse sin entrañar graves riesgos para las personas o el medio ambiente. Dicha inmersión se efectuará intentando conciliar los imperativos de seguridad y las exigencias de conservación de la fauna y la flora marinas.
El control de la aplicación de lo dispuesto en la presente sección a los buques y aeronaves militares franceses será ejercido por los agentes de los servicios dependientes del Ministerio de Defensa.
Las penas previstas en la presente sección serán aplicables a las personas sujetas a las jurisdicciones militares de las Fuerzas Armadas, de conformidad con lo dispuesto en el Código de Justicia Militar y, en especial, en sus artículos 165 y 171.
Sección IV Contaminación causada por las operaciones de incineración Artículos L218-59 a
L218-71
Artículo L218-59 Se prohibirá la incineración en el mar.
Artículo L218-60 Para la aplicación de la presente sección, se entenderá por: 1° Incineración en el mar: toda combustión deliberada de residuos, sustancias, productos o materiales embarcados
con objeto de su eliminación en el mar, a partir de un buque o de una estructura artificial fija; 2° Buque: toda embarcación de mar de cualquier tipo, incluidas las embarcaciones de hidroplaneo, los
aerodeslizadores, así como las plataformas flotantes y toda clase de artefactos flotantes, ya sean autopropulsados o no;
3° Estructura artificial fija: todo artefacto no flotante, instalación, plataforma o dispositivos fijos cualesquiera que fueran.
Artículo L218-61 (Ley nº 2003-346 de 15 de abril de 2003 art. 6 Diario Oficial de 16 de abril de 2003)
I. - Lo dispuesto en la presente sección se aplicará a los buques extranjeros: 1° En caso de incineración en las aguas bajo soberanía o jurisdicción francesa; 2° También en caso de incineración fuera de las aguas bajo soberanía o jurisdicción francesa, cuando el embarque
o la carga hubiera tenido lugar en territorio francés. II. - No obstante, cuando la infracción hubiera sido cometida dentro de la zona económica o de la zona de
protección ecológica, sólo se podrán imponer las multas previstas en los artículos L.218-64 y L.218-65. y L.218-13 a L.218-19.
Artículo L218-62 Incluso en caso de diligencias penales, la Administración tendrá la facultad de reclamar la reparación de los daños
causados al dominio público, con arreglo al procedimiento en materia de infracciones relativas a las grandes vías marítimas o fluviales
Artículo L218-63 En cualquier caso, los derechos de terceros ante los autores de la contaminación serán siempre respetados.
Artículo L218-64 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Será castigado con la pena de dos años de prisión y una multa de 75.000 euros el capitán de buque francés o, en su defecto, la persona que asumiere la dirección de las operaciones de incineración realizadas en un buque francés o una estructura artificial fija bajo jurisdicción francesa, por el hecho de incinerar en el mar.
Las penas previstas en el párrafo anterior serán aplicables al capitán de buque que embarque o cargue en territorio francés residuos, sustancias, productos o materiales destinados a ser incinerados en el mar.
Las personas físicas culpables de las infracciones previstas en la presente sección se expondrán también, como pena accesoria, a la publicación de la resolución mediante edictos o difusión de la misma en las condiciones previstas en el artículo 131-35 del Código Penal.
Artículo L218-65 Sin perjuicio de las penas previstas en el artículo L.218-64, si una de las infracciones hubiera sido cometida por
orden del propietario o explotador del buque o estructura artificial fija definidos en los apartados 2 y 3 del artículo L.218-60, dicho propietario o explotador será castigado con las penas previstas en el artículo 218-64 aumentadas al
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CÓDIGO DE MEDIO AMBIENTE doble.
Artículo L218-66 I. - Además de los funcionarios y agentes de la policía judicial, estarán habilitados para investigar y comprobar las
infracciones a las disposiciones de la presente sección: 1° Los administradores de asuntos marítimos; 2° Los inspectores de asuntos marítimos; 3° Los funcionarios de la organización técnica y administrativa de asuntos marítimos; 4° Los técnicos expertos del servicio de vigilancia marítima; 5° Los ingenieros de puentes y caminos y los ingenieros de obras públicas del Estado destinados en los servicios
marítimos, así como los agentes de dichos servicios nombrados a estos efectos; 6° Los ingenieros de minas y los ingenieros de obras públicas del Estado destinados en el servicio de minas de los
distritos mineros interesados; 7° Los oficiales portuarios y oficiales portuarios adjuntos; 8° Los agentes de policía de navegación y de vigilancia de pesca marítima; 9° Los comandantes, segundos comandantes o segundos oficiales de buques de la Marina Nacional; 10° Los ingenieros de armamento nombrados a estos efectos; 11° Los investigadores, ingenieros y técnicos jurados del Instituto Francés de Investigación para la Explotación del
Mar; 12° Los agentes de aduanas; 13° En el extranjero, los cónsules de Francia, exceptuando a los agentes consulares. II. - Estarán encargados de investigar las infracciones a lo dispuesto en la presente sección, de recabar todas las
informaciones con objeto de descubrir a los autores de dichas infracciones y de informar de éstas o bien a un administrador de asuntos marítimos, un funcionario de la organización técnica y administrativa de asuntos marítimos o un inspector de asuntos marítimos, o bien a un funcionario de la policía judicial:
1° Los comandantes de buques oceanográficos del Estado; 2° Los jefes de a bordo de las aeronaves militares, de las aeronaves de protección civil y de las aeronaves del
Estado destinados a la vigilancia de las aguas marítimas; 3° Los agentes del Instituto Francés de Investigación para la Explotación del Mar;
Artículo L218-67 Los hechos recogidos en los atestados levantados de conformidad con el artículo L.218-66 se presumirán ciertos,
salvo prueba en contrario. Serán remitidos inmediatamente al Fiscal de la República por el agente encargado de su incoación, quien remitirá al mismo tiempo una copia a los servicios interesados.
Artículo L218-68 Cuando las necesidades de la investigación o de la información y la gravedad de la infracción lo exijan, se podrá
inmovilizar el buque con el que se hubiera cometido una de las infracciones citadas en los artículos L.218-64 y L.218-65, mediante resolución del Fiscal de la República o del Juez de Instrucción encargado de las diligencias.
En cualquier momento, la autoridad judicial competente podrá ordenar el levantamiento de la inmovilización condicionándolo a la prestación de una fianza cuya cuantía y forma de pago fijará.
Las condiciones de asignación, empleo y devolución de la fianza serán reguladas según lo dispuesto en los artículos 142, 142-2 y 142-3 del Código de Proceso Penal.
Artículo L218-69 Las infracciones a lo dispuesto en la presente sección serán juzgadas por el Tribunal competente del lugar de
comisión de la infracción o por el Tribunal del lugar donde resida el autor de la infracción. II. - Será asimismo competente: 1° El Tribunal en cuya circunscripción está matriculado el buque, si es francés; 2° El Tribunal en cuya circunscripción hubiera sido encontrado, si es extranjero, o si se trata de un artefacto o
plataforma sin matricular. III. - A falta de otra competencia, será competente el Tribunal de Grande Instance de París.
Artículo L218-70 I. - Las personas jurídicas podrán ser declaradas penalmente responsables en las condiciones previstas en el
artículo 121-2 del Código Penal de las infracciones a lo dispuesto en la presente sección. II. - Las penas a las que se exponen las personas jurídicas son: 1° La multa, de acuerdo con las condiciones previstas en el artículo 131-38 del Código Penal; 2° Las penas mencionadas en los apartados 2°, 3°, 4°, 5°, 6°, 8° y 9° del artículo 131-39 del mismo Código. III. - La inhabilitación mencionada en el apartado 2º del artículo 131-39 del Código Penal se refiere a la actividad en
cuyo ejercicio o con ocasión de cuyo ejercicio se hubiera cometido la infracción.
Artículo L218-71 El control de la aplicación de lo dispuesto en la presente sección a los buques de la Marina Nacional, a los demás
buques y a las estructuras artificiales fijas militares francesas será ejercido por los agentes de los servicios dependientes del Ministerio de Defensa.
Las penas previstas en la presente sección serán aplicables a las personas sujetas a las jurisdicciones militares de las Fuerzas Armadas, de conformidad con lo dispuesto en el Código de Justicia Militar y, en especial, en sus artículos
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CÓDIGO DE MEDIO AMBIENTE 165 y 171.
Sección V Medidas de policía marítima de emergencia Artículo L218-72
Artículo L218-72 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 5º Diario Oficial de 3 de julio de 2003)
En caso de avería o accidente en el mar acaecido a cualquier buque, aeronave, artefacto o plataforma que transportara o que tuviera a bordo sustancias nocivas, peligrosas o hidrocarburos, y que pudieran crear un peligro de daño grave para el litoral o los intereses conexos en el sentido del artículo II-4 del Convenio Internacional de Bruselas de 29 de noviembre de 1969 relativo a la intervención en alta mar en casos de accidentes que causen una contaminación por hidrocarburos, el armador o propietario del buque, el propietario o explotador de la aeronave, artefacto o plataforma podrán ser requeridos para que adopten todas las medidas necesarias para poner fin a dicho peligro.
En el caso de que no surtiera efecto el requerimiento o no hubiera producido los efectos esperados en el plazo concedido, o el requerimiento se tramitara de oficio en caso de urgencia, el Estado podrá pedir la ejecución de las medidas necesarias por cuenta y riesgo del armador, propietario o explotador, o reclamarles el importe de su coste.
Lo dispuesto en los párrafos primero y segundo del presente artículo se aplicará igualmente a los buques, aeronaves, artefactos o plataformas que se encuentren averiados o accidentados en el dominio público marítimo, en los puertos marítimos y en sus accesos.
La entrega de los bienes y prestaciones de servicios necesarios para la ejecución de las medidas tomadas en aplicación del presente artículo o del Convenio Internacional de Bruselas de 29 de noviembre de 1969, relativo a la intervención en alta mar en casos de accidentes que causen una contaminación por hidrocarburos, se podrá obtener mediante acuerdo amistoso o por requisa.
La cuantía de las indemnizaciones debidas por el Estado será determinada en las condiciones previstas por los títulos II, IV y V de la resolución nº 59-63 de 6 de enero de 1959, relativa a las requisas de bienes y servicios.
Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente artículo.
Sección VI Otras disposiciones aplicables a los vertidos perjudiciales en el mar o en las
aguas saladas Artículos L218-73 a L218-80
Artículo L218-73 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Se sancionará con una multa de 22.500 euros la descarga, vertido o escorrentía, de manera directa o indirecta, en el mar o en la parte de los cursos de agua, canales, lagos, o embalses donde las aguas sean saladas, de sustancias u organismos perjudiciales para la conservación o la reproducción de los mamíferos marinos, peces, crustáceos, mariscos, moluscos o vegetales, o cuyo carácter los convierta en no aptos para el consumo.
Artículo L218-74 Podrán ser declarados responsables de las multas impuestas por las infracciones previstas en el artículo L.218-73
los armadores de los barcos de pesca, sean o no los propietarios, por los actos cometidos por los patrones y tripulaciones de dichos barcos, y los explotadores de los establecimientos de cultivos marinos y almacenes de mariscos, por los actos cometidos por sus agentes o empleados.
En todos los casos, serán civilmente responsables.
Artículo L218-75 Cuando la comisión de una infracción prevista en el artículo L.218-73 hubiera sido comprobada en las condiciones
previstas en el artículo L.218-77, el representante del Estado en la región podrá suspender, durante un período máximo de tres meses, los derechos y prerrogativas correspondientes a los diplomas, títulos o certificados de los capitanes, patrones o de aquéllos que desempeñasen esas funciones, así como las licencias de pesca, los permisos especiales de pesca y, en general, cualquier autorización de pesca concedida en aplicación de las disposiciones nacionales o comunitarias.
La sanción será impuesta mediante decisión motivada y previo dictamen del Consejo de Disciplina, en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Con carácter previo se notificará a los interesados los hechos considerados para iniciar la acción judicial. Se les notificará la posibilidad de acceder a su expediente y se les informará de que disponen de un plazo de dos
meses para presentar las alegaciones que estimen pertinentes. El representante del Estado en la región no podrá suspender los derechos o la autorización en vigor por hechos
ocurridos con anterioridad a un año. Su decisión, que podrá ir acompañada de un aplazamiento, será susceptible de un recurso de plena jurisdicción
ante el Tribunal Administrativo.
Artículo L218-76 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-204 de 9 de marzo de 2004 art. 198 Diario Oficial de 10 de marzo de 2004 con entrada en vigor el
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CÓDIGO DE MEDIO AMBIENTE 1 de enero de 2005)
En caso de condena por las infracciones previstas en el artículo L. 218-73, el Tribunal fijará, si procede, las medidas a adoptar para que se proceda al cese de la infracción o se evite su reincidencia y el plazo dentro del cual se tendrán que ejecutar dichas medidas, así como una sanción pecuniaria de una cuantía máxima de 300 euros por día de retraso en la ejecución de las medidas u obligaciones impuestas.
El cómputo de la sanción pecuniaria dejará de correr en el momento en que las medidas en hayan sido ejecutadas completamente. El Tribunal procederá entonces a su liquidación a petición del interesado y será recaudada por el Contable del Tesoro como una multa penal. No dará lugar a prisión cautelar por impago de deudas. El presente artículo se aplicará solamente a las descargas, vertidos o escorrentías procedentes de depósitos o instalaciones fijas.
Artículo L218-77 Estarán habilitados para investigar y comprobar las infracciones previstas en el artículo L.218-73: 1° Los agentes mencionados en el artículo 16 del Decreto de 9 de enero de 1852 sobre el ejercicio de la pesca
marítima; 2° Los agentes de los Parques Nacionales en las condiciones previstas en el capítulo I del título III del libro III del
presente Código; 3° Los agentes de las Reservas Naturales en las condiciones previstas en el capítulo II del título III del libro III del
presente Código;
Artículo L218-78 Lo dispuesto en los artículos 17 a 21 bis del Decreto de 9 de enero de 1852, sobre el ejercicio de la pesca
marítima, será de aplicación a las infracciones previstas por el artículo L.218-73.
Artículo L218-79 Las personas físicas culpables de las infracciones previstas en el artículo L.218-73 se expondrán también, como
pena accesoria, a la publicación de la resolución mediante edictos o difusión de la misma en las condiciones previstas en el artículo 131-35 del Código Penal.
Artículo L218-80 I. - Las personas jurídicas podrán ser declaradas penalmente responsables en las condiciones previstas en el
artículo 121-2 del Código Penal de las infracciones contempladas en el artículo L.218-73. II. - Las penas a las que se exponen las personas jurídicas son: 1° La multa, de acuerdo con las condiciones previstas en el artículo 131-38 del Código Penal; 2° Las penas mencionadas en los apartados 2°, 3°, 4°, 5°, 6°, 8° y 9° del artículo 131-39 del mismo Código. III. - La inhabilitación mencionada en el apartado 2º del artículo 131-39 del Código Penal se refiere a la actividad en
cuyo ejercicio o con ocasión de cuyo ejercicio se hubiera cometido la infracción.
Sección VII Zona de protección ecológica Artículo L218-81
Artículo L218-81 (Introducido por la Ley nº 2003-346 de 15 de abril de 2003 art. 7 Diario Oficial de 16 de abril de 2003)
De acuerdo con lo dispuesto en el artículo 4 de la Ley nº 76-655 de 16 de julio de 1976, relativa a la zona económica y a la zona de protección ecológica a lo largo de las costas del territorio de la República, que se transcribe a continuación:
Art. 4.- Dentro de la zona económica definida en el artículo 1, las autoridades francesas ejercerán, además, las competencias reconocidas por el derecho internacional relativas a la protección y preservación del medio marino, a la investigación científica marina, a la implantación y utilización de islas artificiales, de instalaciones y de construcciones.
Cuando, dentro de una zona delimitada tal como se señala en el artículo 1, las autoridades francesas consideren que, por motivos derivados de las relaciones internacionales, sólo deban ejercerse las competencias mencionadas en el párrafo primero, esta zona será denominada zona de protección ecológica. Lo dispuesto en el artículo 3 no se aplicará dentro de esta zona a los buques que enarbolen pabellón de un Estado extranjero.
Título II Aire y atmósfera Artículos L221-1 a
L220-2
Artículo L220-1 El Estado y sus organismos públicos, las entidades territoriales y sus organismos públicos, así como las personas
privadas, cada uno dentro del ámbito de su competencia y hasta los límites de su responsabilidad, llevarán a cabo una política cuyo objetivo sea la aplicación del derecho de todos a respirar un aire que no sea perjudicial para su salud.
Esta acción de interés general consistirá en prevenir, vigilar, reducir o eliminar la contaminación atmosférica, en preservar la calidad del aire y, a estos efectos, en ahorrar y usar la energía de manera racional.
Artículo L220-2 A efectos del presente título, se entenderá por contaminación atmosférica la introducción directa o indirecta por el
hombre, en la atmósfera y los espacios cerrados, de sustancias cuyas consecuencias son perjudiciales hasta el punto de poner en peligro la salud humana, dañar los recursos biológicos y los ecosistemas, influir en los cambios climáticos, deteriorar los bienes materiales y provocar molestias olfativas excesivas.
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CÓDIGO DE MEDIO AMBIENTE Capítulo I Vigilancia de la calidad del aire e información pública Artículos L221-1 a
L221-6
Sección I Vigilancia de la calidad del aire Artículos L221-1 a
L221-5
Artículo L221-1 (Ley nº 2001-398 de 9 de mayo de 2001 art. 6 Diario Oficial de 10 de mayo de 2001) (Disposición nº 2005-1087 de 1 de septiembre de 2005 art. 3 Diario Oficial de 2 de septiembre de 2005)
I. - El Estado, con el apoyo de las entidades territoriales y dentro del respeto a la libre administración de éstas y a los principios de descentralización, será el encargado de la vigilancia de la calidad del aire y de sus efectos sobre la salud y el medio ambiente. Confiará a la Agencia de Medio Ambiente y de Control de la Energía la coordinación técnica de la vigilancia de la calidad del aire. Se fijarán objetivos de calidad del aire, umbrales de alerta y valores límites admisibles, tras dictamen de la Agencia Francesa de Seguridad Sanitaria Medioambiental y de conformidad con los valores definidos por la Unión Europea o, en su defecto, por la Organización Mundial de la Salud. Estos objetivos, umbrales de alerta y valores límites admisibles serán objeto de evaluaciones regulares que tengan en cuenta los resultados de los estudios médicos y epidemiológicos.
II. - A efectos del presente título, se entenderá por: 1° Objetivos de calidad: el nivel de concentración de sustancias contaminantes en la atmósfera, determinado en
base a los conocimientos científicos, cuyo fin es evitar, prevenir o reducir los efectos nocivos de dichas sustancias para la salud humana o el medio ambiente y el cual se deberá alcanzar en un período determinado;
2° Umbrales de alerta: el nivel de concentración de sustancias contaminantes en la atmósfera más allá del cual, en una exposición de corta duración, exista riesgo para la salud de las personas o degradación del medio ambiente y, a partir del cual, se deberán tomar medidas de urgencia;
3° Valores límites admisibles: el nivel máximo de concentración de sustancias contaminantes en la atmósfera, fijado en base a los conocimientos científicos, cuyo fin es evitar, prevenir o reducir los efectos nocivos de dichas sustancias para la salud humana o el medio ambiente.
III. - Se vigilarán las sustancias cuya emisión a la atmósfera pueda contribuir a la degradación de la calidad del aire con respecto a los objetivos mencionados en el párrafo primero, principalmente mediante la observación de la evolución de parámetros apropiados que permitan revelar la existencia de dicha degradación. Asimismo, se vigilarán los indicadores de salud pública susceptibles de ser afectados por la evolución de la calidad del aire.
Artículo L221-2 Se creará un dispositivo de vigilancia de la calidad del aire y de sus efectos sobre la salud y el medio ambiente, con
fecha límite: el 1 de enero de 1997 en las aglomeraciones urbanas con más de 250.000 habitantes, el 1 de enero de 1998 en las aglomeraciones urbanas con más de 100.000 habitantes, y el 1 de enero de 2000 en el conjunto del territorio nacionaL.Las modalidades de vigilancia serán adaptadas a las necesidades de cada zona interesada.
Un decreto determinará los objetivos de calidad del aire, los umbrales de alerta y los valores límites admisibles, así como la lista de las sustancias mencionadas en el punto III del artículo L.221-1. Se adjuntará a este decreto la lista y el mapa de los municipios incluidos en las aglomeraciones urbanas con más de 250.000 habitantes así como en las aglomeraciones urbanas con un número de habitantes comprendido entre 100.000 y 250.000.
Artículo L221-3 En cada región, y en la entidad territorial de Córcega, el Estado encomendará la organización de la vigilancia
prevista en el artículo L.221-2 a uno o varios organismos autorizados. Éstos agruparán, de manera equilibrada, a representantes del Estado, de la Agencia de Medio Ambiente y de Control de la Energía, de las entidades territoriales, a representantes de las diferentes actividades que contribuyen a la emisión de sustancias vigiladas, a representantes de las asociaciones de protección del medio ambiente autorizadas en virtud del artículo L.141-1, de las asociaciones autorizadas de consumidores y, en su caso, a personalidades cualificadas que formarán parte del mismo órgano colegial que las asociaciones. Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente artículo.
Artículo L221-4 Los equipos de medición de calidad del aire y de medición de emisiones de sustancias a la atmósfera, así como los
laboratorios que realizan análisis y controles de emisiones contaminantes, estarán sujetos a la aprobación de la autoridad administrativa. Ésta determinará los métodos de medición y los criterios de emplazamiento de los equipos utilizados.
Artículo L221-5 Las autorizaciones concedidas en aplicación de la presente sección podrán ser revocadas cuando los organismos,
laboratorios, o equipos de medición, dejaran de cumplir con las condiciones que implicaron su concesión.
Sección II Información pública Artículo L221-6
Artículo L221-6
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CÓDIGO DE MEDIO AMBIENTE (Ley nº 2001-398 de 9 de mayo de 2001 art. 6 Diario Oficial de 10 de mayo de 2001) (Disposición nº 2005-1087 de 1 de septiembre de 2005 art. 3 Diario Oficial de 2 de septiembre de 2005)
Sin perjuicio de las disposiciones de la Ley nº 78-753 de 17 de julio de 1978, por la que se establecen diversas medidas para la mejora de las relaciones entre la administración y los ciudadanos, y sin perjuicio de lo establecido en diversas disposiciones de orden administrativo, social y fiscal, se publicarán periódicamente los resultados de estudios epidemiológicos y medioambientales vinculados a la contaminación atmosférica, así como las informaciones y previsiones relativas a la vigilancia de la calidad del aire, a las emisiones a la atmósfera y al consumo de energía, pudiéndose encargar dicha publicación en sus respectivas zonas de competencia a los organismos autorizados mencionados en el artículo L. 221-3.
El Estado publicará todos los años un inventario de las emisiones de sustancias contaminantes y otro del consumo de energía. Igualmente, publicará un informe sobre la calidad del aire, su posible evolución y sus efectos sobre la salud y el medio ambiente. El inventario de las emisiones de sustancias contaminantes y el informe sobre la calidad del aire, su posible evolución y sus efectos sobre la salud y el medio ambiente, serán sometidos a la aprobación de la Agencia Francesa de Seguridad Sanitaria Medioambiental y Laboral.
Cuando no se alcancen los objetivos de calidad del aire, o cuando se superen o exista el riesgo de superar los umbrales de alerta y los valores límites admisibles mencionados en el artículo L. 221-1, la autoridad administrativa competente informará de ello públicamente y de modo inmediato. Dicha información contendrá también los valores obtenidos en las mediciones, los consejos para las poblaciones afectadas y las disposiciones reglamentarias adoptadas. La autoridad administrativa competente podrá delegar la responsabilidad de esta información en los organismos autorizados contemplados en el artículo L. 221-3.
Capítulo II Planificación Artículos L222-1 a
L222-8
Sección I Planes regionales para la calidad del aire Artículos L222-1 a
L222-3
Artículo L222-1 (Ley nº 2002-92 de 22 de enero de 2002 art. 24 I Diario Oficial de 23 de enero de 2002) (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 I a Diario Oficial de 28 de febrero de 2002)
El Presidente del Consejo Regional elaborará un plan regional para la calidad del aire que establezca orientaciones para prevenir o reducir la contaminación atmosférica o atenuar sus efectos, con vistas a alcanzar los objetivos de calidad del aire mencionados en el artículo L.221-1. Los servicios del Estado participarán en su elaboración. El Consejo Regional recogerá el dictamen del Comité de Macizo para las zonas donde se aplica el Convenio alpino. Este plan fijará asimismo los objetivos de calidad del aire específicos de determinadas zonas, siempre que dichos objetivos estén justificados por las necesidades de protección de las mismas.
A estos efectos, el plan regional para la calidad del aire se basará en un inventario de las emisiones y en una evaluación de la calidad del aire y de sus efectos sobre la salud pública y el medio ambiente.
En Córcega, el plan regional para la calidad del aire será elaborado por el Presidente del Consejo Ejecutivo. Los servicios del Estado participarán en su elaboración.
Artículo L222-2 (Ley nº 2002-92 de 22 de enero de 2002 art. 24 II Diario Oficial de 23 de enero de 2002) (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 I b, c Diario Oficial de 28 de febrero de 2002) (Disposición nº 2004-637 de 1 de julio de 2004 art. 23 V, art. 27II Diario Oficial de 2 de julio de 2004)
Las Comisiones departamentales competentes en materia de medio ambiente, riesgos sanitarios y tecnológicos y los representantes de los organismos autorizados mencionados en el artículo L. 221-3 participarán en la elaboración del plan regional para la calidad del aire.
El proyecto de plan se pondrá a disposición pública para consulta. Se remitirá a los municipios, a los organismos públicos de cooperación intermunicipal y a las entidades administrativas mixtas competentes en materia de elaboración de Planes de Coherencia Territorial, a los municipios donde exista un plan de desplazamientos urbanos o un Plan de Protección de la Atmósfera, así como a las autoridades competentes en materia de organización de transportes urbanos y a los Consejos Generales, al objeto de que emitan un dictamen. Tras las eventuales modificaciones realizadas con el objeto de tener en cuenta las observaciones de los ciudadanos y los dictámenes de las entidades consultadas, se elevará a definitivo por acuerdo del Consejo Regional o, en Córcega, por acuerdo de la Asamblea de Córcega, a propuesta del Presidente del Consejo Ejecutivo y tras aprobación del representante del Estado.
Después de un período de cinco años, el plan será objeto de una evaluación y, en su caso, será revisado si los objetivos de calidad del aire no hubieran sido alcanzados.
En tales circunstancias, el plan será modificado en función de los elementos objetivos de la valoración quinquenal y de la actualización de los datos científicos y sanitarios.
En la región Isla de Francia, el Alcalde de París participará en la elaboración y revisión del plan. NOTA: Disposición 2004-637 2004-07-01 art. 41: las modificaciones introducidas por el artículo 23 V entrarán en
vigor a más tardar el 1 de julio de 2005.
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CÓDIGO DE MEDIO AMBIENTE Artículo L222-3 (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 I d Diario Oficial de 28 de febrero de 2002)
Un decreto adoptado en Conseil d'Etat establecerá las condiciones de aplicación de la presente sección, en particular las condiciones en las cuales el representante del Estado en la región elaborará o revisará el plan regional para la calidad del aire, cuando, tras habérsele solicitado que lo adoptara, el Consejo Regional o, en Córcega, la Asamblea de Córcega no hubiera procedido a esta adopción en el plazo de dieciocho meses.
Sección II Planes de protección de la atmósfera Artículos L222-4 a
L224-4
Artículo L222-4 I. - Con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat, en todas las aglomeraciones
urbanas con más de 250.000 habitantes, así como en las zonas donde los valores límites admisibles mencionados en el artículo L.221-1 sean superados o exista el riesgo de que lo sean, el Prefecto elaborará un Plan de Protección de la Atmósfera, compatible, en su caso, con las orientaciones del plan regional para la calidad del aire.
II. - Tras el dictamen del Comité Regional de Medio Ambiente y de los Consejos departamentales de higiene correspondientes, el proyecto de plan será sometido a dictamen de los Consejos municipales y, cuando existan, a los órganos deliberantes de los organismos públicos de cooperación intermunicipal interesados. Si no se emitiera ningún dictamen en el plazo de seis meses a partir de la remisión del proyecto de plan, se considerará que dicho dictamen es favorable. Dicho proyecto será sometido seguidamente a consulta pública en las condiciones previstas en el capítulo III del título II del libro I.
III. - Tras las eventuales modificaciones efectuadas con el objeto de tener en cuenta los resultados de la consulta, el plan quedará aprobado por el Prefecto.
IV. - Para las aglomeraciones urbanas con más de 250.000 habitantes, los planes de protección de la atmósfera previstos en la presente sección serán establecidos en el plazo de dieciocho meses a partir del 1 de enero de 1997. Para las zonas en las cuales se hubiera comprobado que se superan los valores límites admisibles, los mismos serán establecidos en el plazo de dieciocho meses a partir de la fecha de comprobación de dicha superación.
V. - Los planes serán objeto de una evaluación tras un período de cinco años y, en su caso, serán revisados.
Artículo L222-5 El Plan de Protección de la Atmósfera tendrá por objeto, dentro del plazo fijado en el mismo, reducir en el interior
de una zona la concentración de sustancias contaminantes en la atmósfera hasta un nivel inferior a los valores límites admisibles contemplados en el artículo L.221-1, y establecer las modalidades del procedimiento de alerta definido en el artículo L.223-1.
Cuando así lo justifiquen determinadas circunstancias locales particulares relacionadas con la protección de los intereses mencionados en los artículos L.220-1 y L.220-2, el Plan de Protección de la Atmósfera podrá reforzar los objetivos de calidad del aire mencionados en el artículo L.221-1 y señalar las orientaciones que permitan alcanzarlos. Se podrá asimismo reforzar las medidas técnicas mencionadas en los artículos L.224-1, L.224-2 y L.224-4.
El decreto a que se refiere el artículo L.222-7 especificará las medidas que se podrán aplicar para alcanzar los objetivos fijados por el Plan de Protección de la Atmósfera, principalmente en lo concerniente a las normas de funcionamiento y de explotación de determinadas categorías de instalaciones, al uso de los carburantes o combustibles, a las condiciones de utilización de los vehículos o demás bienes muebles, al aumento de la frecuencia de los controles de las emisiones de las instalaciones, de los vehículos o demás bienes muebles, y a la ampliación de la gama de sustancias controladas.
Artículo L222-6 Para alcanzar los objetivos definidos en el Plan de Protección de la Atmósfera, las autoridades competentes en
materia de policía establecerán las medidas preventivas, de aplicación temporal o permanente, destinadas a reducir las emisiones de las fuentes de contaminación atmosférica.
Dichas medidas serán adoptadas en base a las disposiciones del título I del libro V cuando el establecimiento que causara la contaminación estuviera regido por estas disposiciones. En los demás casos, las autoridades mencionadas en el párrafo anterior podrán imponer la restricción o la suspensión de las actividades contaminantes y establecer limitaciones al tráfico de vehículos.
Artículo L222-7 (Ley nº 2001-398 de 9 de mayo de 2001 art. 6 Diario Oficial de 10 de mayo de 2001) (Disposición nº 2005-1087 de 1 de septiembre de 2005 art. 3 Diario Oficial de 2 de septiembre de 2005 modificado por el Diario Oficial de la República Francesa de 10 de septiembre de 2005)
Las condiciones de aplicación de la presente sección serán determinadas por decreto adoptado en Conseil d'Etat, previa consulta del Consejo Superior de las Instalaciones Clasificadas y de la Agencia Francesa de Seguridad Sanitaria Medioambiental y Laboral.
Artículo L224-4 (Disposición nº 2004-637 de 1 de julio de 2004 art. 23 V, art. 27III Diario Oficial de 2 de julio de 2004)
I. - Con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat, en todas las aglomeraciones urbanas con más de 250.000 habitantes, así como en las zonas donde los valores límites admisibles mencionados en
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CÓDIGO DE MEDIO AMBIENTE el artículo L. 221-1 sean superados o exista el riesgo de que lo sean, el Prefecto elaborará un Plan de Protección de la Atmósfera, compatible, en su caso, con las orientaciones del plan regional para la calidad del aire.
II. - Tras el dictamen de las correspondientes comisiones departamentales competentes en materia de medio ambiente, riesgos sanitarios y tecnológicos, el proyecto de plan será sometido a dictamen de los Consejos municipales y, cuando existan, a los órganos de decisión de los organismos públicos de cooperación intermunicipal interesados. Si no se emitiera ningún dictamen en el plazo de seis meses a partir de la remisión del proyecto de plan, se considerará que dicho dictamen es favorable. Dicho proyecto será sometido seguidamente a consulta pública en las condiciones previstas en el capítulo III del título II del libro I.
III. - Tras las eventuales modificaciones efectuadas con el objeto de tener en cuenta los resultados de la consulta, el plan quedará aprobado por el Prefecto.
IV. - Para las aglomeraciones urbanas con más de 250.000 habitantes, los planes de protección de la atmósfera previstos en la presente sección serán establecidos en el plazo de dieciocho meses a partir del 1 de enero de 1997. Para las zonas en las cuales se hubiera comprobado que se superan los valores límites admisibles, los mismos serán establecidos en el plazo de dieciocho meses a partir de la fecha de comprobación de dicha superación.
V. - Los planes serán objeto de una evaluación tras un período de cinco años y, en su caso, serán revisados. NOTA: Disposición 2004-637 2004-07-01 art. 41: las modificaciones introducidas por el artículo 23 V entrarán en
vigor a más tardar el 1 de julio de 2005.
Sección III Planes de Desplazamientos Urbanos Artículo L222-8
Artículo L222-8 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 6º Diario Oficial de 3 de julio de 2003)
Las disposiciones relativas a los planes de desplazamientos urbanos están contempladas en el capítulo II del título II de la Ley nº 82-1153 de 30 de diciembre de 1982, de orientación de los transportes interiores.
Capítulo III Medidas de urgencia Artículos L223-1 a
L223-2
Artículo L223-1 Cuando se alcanzaran los umbrales de alerta o existiera el riesgo de que se alcanzaran, el Prefecto informará de
ello públicamente y con carácter inmediato, con arreglo a las condiciones previstas en la sección 2 del capítulo I del presente título, y tomará las medidas adecuadas para reducir la magnitud y los efectos de los picos de contaminación sobre la población. Estas medidas, tomadas en aplicación del Plan de Protección de la Atmósfera, cuando existiera, y tras haber informado a los Alcaldes interesados, incluyen un dispositivo de restricción o suspensión de las actividades que hubieran contribuido a crear estos picos de contaminación, pudiendo restringirse o suspenderse, en caso de necesidad, el tráfico de vehículos y las emisiones procedentes de fuentes fijas y móviles.
Artículo L223-2 En caso de imposición de medidas de restricción o de suspensión del tráfico de vehículos adoptadas por el
Prefecto en virtud de un procedimiento de alerta, el acceso a las redes de transporte público de pasajeros será gratuito.
Capítulo IV Medidas técnicas nacionales para la prevención de la contaminación atmosférica y
el uso racional de la energía Artículos L224-1 a L224-5
Sección I Disposiciones generales Artículos L224-1 a
L224-2
Artículo L224-1 (Ley nº 2005-781 de 13 de julio de 2005 art. 27 IV, V Diario Oficial de 14 de julio de 2005)
I. - Con el objeto de reducir el consumo de energía y limitar las fuentes de emisión de sustancias contaminantes nocivas para la salud humana y el medio ambiente, por decreto adoptado en Conseil d'Etat se establecerán:
1° Las especificaciones técnicas y las normas de rendimiento aplicables a la fabricación, comercialización, almacenamiento, uso, mantenimiento y eliminación de los bienes muebles que no sean los vehículos citados en los artículos L.. 331-1, L. 318-1 a L. 318-4 del Código de la Circulación, los cuales se reproducen en el artículo L. 224-5 del presente Código;
2° Las especificaciones técnicas aplicables a la construcción, uso, conservación y demolición de bienes inmuebles; 3° Las condiciones de control de las operaciones mencionadas en los dos párrafos anteriores. II. - Los decretos mencionados en el punto I podrán asimismo: 1° Imponer a los constructores y a los usuarios que controlen el consumo de energía y las emisiones de sustancias
contaminantes de sus bienes, por iniciativa propia y por su cuenta; 2° Prever que las calderas y sistemas de climatización cuya potencia sobrepase un umbral fijado por decreto sean
objeto de inspecciones periódicas cuyas modalidades de ejecución serán definidas por los mismos. Con motivo de dichas inspecciones, se podrá ofrecer asesoramiento a los propietarios o a los gestores con el objeto de optimizar sus
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CÓDIGO DE MEDIO AMBIENTE instalaciones;
3° Establecer la obligación, para las empresas que venden energía o servicios energéticos, de fomentar una utilización racional de energía y de incitar al ahorro de energía en sus anuncios publicitarios.
III. - Por decreto adoptado en Conseil d'Etat se determinará el porcentaje mínimo de oxígeno que deberá contener el fuel oil doméstico, el gasóleo, la gasolina y los supercarburantes.
IV. - Por decreto se establecerán las condiciones en que deberán ser redefinidas las especificaciones de los carburantes mencionados en el punto III a partir del 1 de enero de 2000.
V. - A fin de cumplir con los objetivos del presente título, por decreto adoptado en Conseil d'Etat se establecerán las cantidades mínimas de madera que deberán contener determinadas construcciones nuevas.
Artículo L224-2 (Ley nº 2004-1343 de 9 de diciembre de 2004 art. 41 III Diario Oficial de 10 de diciembre de 2004) (Ley nº 2005-781 de 13 de julio de 2005 art. 28 Diario Oficial de 14 de julio de 2005)
Los decretos mencionados en el artículo L. 224-1 determinarán las condiciones en las que las autoridades administrativas competentes estarán habilitadas para:
1° Conceder y retirar la autorización a los peritos u organismos encargados de realizar los controles previstos en el apartado 1° del punto II del artículo L. 224-1;
2° Establecer la obligación de proporcionar en el lugar de venta o alquiler de determinados bienes la información relativa a su consumo energético y de indicar los métodos de medición; así como, en su caso, de proporcionar una estimación de su coste total, teniendo en cuenta su consumo de energía y su precio de compra y de indicar los métodos de cálculo.
3° Derogado 4° Establecer la obligación de equipar los inmuebles destinados a vivienda o servicios y cuya licencia de obras
hubiera sido solicitada después del 1 de julio de 1997, con dispositivos que permitan elegir y sustituir todo tipo de energía en cualquier momento del ciclo de vida del edificio.
Sección II Vehículos automóviles Artículos L224-3 a
L224-5
Artículo L224-3 Se incentivará, en el marco de la lucha contra la contaminación del aire, la incorporación de compuestos
oxigenados, sobre todo de origen agrícola, en los carburantes petrolíferos destinados a la circulación de automóviles. Dentro del marco definido en el ámbito comunitario, y a propuesta del Ministro competente en materia de Energía y
del Ministro de Medio Ambiente, esta incorporación será objeto de operaciones piloto en las zonas urbanas sensibles cuya contaminación se caracterice por altos porcentajes de óxido de carbono, de hidrocarburos no quemados y de ozono atmosférico.
Las condiciones generales de realización de estas operaciones piloto serán definidas por decreto adoptado en Conseil d'Etat.
Artículo L224-4 Los decretos contemplados en el artículo L.224-1, determinarán las condiciones en las que las autoridades
administrativas competentes estarán habilitadas para establecer las condiciones en las que se limitarán las emisiones de compuestos orgánicos volátiles vinculadas al repostado de los vehículos en las estaciones de servicio con un volumen superior a 3.000 metros cúbicos por año.
Artículo L224-5 Las normas relativas al consumo energético y a las emisiones contaminantes de los vehículos automóviles están
determinadas en los artículos L.311-1 y L.318-1 a L.318-3 del Código de la Circulación, que se transcriben a continuación:
"Art. L.311-1 Los vehículos tendrán que ser fabricados, comercializados, explotados, utilizados, conservados y, en su caso, reparados de tal manera que se garantice la seguridad de todos los usuarios de la carretera.
Las condiciones de aplicación del presente artículo serán determinadas por decreto adoptado en Conseil d'Etat. "Art. L.318-1 Los vehículos tendrán que ser fabricados, comercializados, explotados, utilizados, conservados y, en
su caso, reparados de tal manera que se reduzcan al mínimo el consumo de energía, la producción de residuos no valorizables, las emisiones de sustancias contaminantes, en particular de dióxido de carbono, citadas en el artículo L.220-2 del Código de Medio Ambiente sobre el aire y el uso racional de la energía, así como las demás molestias susceptibles de comprometer la salud pública.
El consumo energético de los vehículos y sus métodos de medición deberán estar anunciados en su lugar de venta o alquiler.
Los vehículos a motor se identificarán en función de su contribución a la reducción de la contaminación atmosférica. Los vehículos así identificados podrán beneficiarse, en particular, de condiciones privilegiadas de circulación y estacionamiento.
Las condiciones de aplicación del presente artículo serán determinadas por decreto adoptado en Conseil d'Etat. "Art. L.318-2 Sin perjuicio de las restricciones vinculadas a las necesidades del servicio, cuando el Estado, los
organismos públicos, las empresas nacionales en lo que respecta a sus actividades excluidas del ámbito de la libre competencia, así como las entidades territoriales y sus agrupaciones, administren directa o indirectamente una flota de
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CÓDIGO DE MEDIO AMBIENTE más de veinte vehículos, y se dispongan a renovar su parque automovilístico, tendrán que adquirir o utilizar, en una proporción mínima de un 20%, vehículos que funcionen con energía eléctrica, gas licuado de petróleo o gas naturaL. Esta medida se aplicará a todos los vehículos de dichos parques automovilísticos, exceptuando aquéllos cuyo peso total en carga autorizado excediera de 3,5 toneladas.
Un decreto adoptado en Conseil d'Etat precisará las condiciones de aplicación del presente artículo. "Art. L.318-3 Sin perjuicio de las restricciones vinculadas a las necesidades del servicio, cuando el Estado, los
organismos públicos, las empresas nacionales en cuanto a sus actividades excluidas del ámbito de la libre competencia, así como las entidades territoriales y sus agrupaciones administrasen directa o indirectamente una flota de más de veinte vehículos destinados al transporte público de pasajeros, tendrán que utilizar vehículos que funcionen con carburantes cuyo porcentaje mínimo de oxígeno sea mayor. Esta medida se aplicará en el área de transportes de las aglomeraciones urbanas con más de 100.000 habitantes definidas en el párrafo segundo del artículo L.221-2 del Código de Medio Ambiente, sobre el aire y el uso racional de la energía.
Un decreto adoptado en Conseil d'Etat precisará las condiciones de aplicación del presente artículo.
Capítulo V Disposiciones financieras y fiscales Artículos L225-1 a
L225-2
Artículo L225-1 Las disposiciones relativas a la fiscalidad de las energías fósiles y renovables están recogidas en el artículo 25,
párrafos primero y tercero, de la Ley nº 96-1236 de 30 de diciembre de 1996, sobre el aire y el uso racional de la energía.
La financiación de la vigilancia de la calidad del aire, que tenga en cuenta el producto de la fiscalidad de las energías fósiles, se realizará en las condiciones previstas por las leyes de finanzas.
Artículo L225-2 (Disposición nº 2000-916 de 19 de septiembre de 2000 anexo Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Los explotadores de redes de transporte público de pasajeros que equipen sus vehículos de transporte público puestos en circulación entre el 1 de enero de 1991 y el 1 de julio de 1996, con sistemas que permitan reducir las emisiones contaminantes, se beneficiarán de un reembolso del coste de este equipo correspondiente a la mitad de su precio de compra y hasta el límite de 1.215 euros por vehículo de transporte público. Una Orden conjunta del Ministro competente en materia de presupuesto, del Ministro de Transportes y del Ministro de Medio Ambiente autorizará los sistemas que dan derecho al reembolso.
Capítulo VI Controles y sanciones Artículos L226-2 a
L226-1
Artículo L226-1 Las medidas de control y las sanciones serán adoptadas en base a las disposiciones del capítulo I del título I del
libro V cuando la instalación que causa la contaminación estuviera regida por las mismas.
Sección I Investigación y comprobación de las infracciones Artículos L226-2 a
L226-5
Artículo L226-2 Además de los funcionarios y agentes de la policía judicial que actúan en el marco de las disposiciones del Código
de Proceso Penal, estarán habilitados para efectuar los controles previstos en el presente capítulo y para investigar y comprobar las infracciones a las disposiciones del presente título y a las adoptadas para su aplicación:
1° Los agentes mencionados en el artículo L.514-5; 2° Los funcionarios y agentes jurados, nombrados a estos efectos en las condiciones previstas por decreto
adoptado en Conseil d'Etat y pertenecientes a los servicios del Estado que están encargados del medio ambiente, la industria, el equipamiento, los transportes, el mar, la agricultura, la competencia, el consumo y la represión del fraude, la salud;
3° Los agentes de aduanas; 4° Los ingenieros y técnicos del Laboratorio Central y los inspectores de salubridad de la Prefectura de Policía.
Artículo L226-3 Los funcionarios y agentes mencionados en el artículo L.226-2 tendrán acceso a los locales, instalaciones y
lugares cerrados colindantes, exceptuando los domicilios y aquellas partes de los locales que sirvan de domicilio. Los agentes sólo podrán acceder a dichos locales o instalaciones entre las 8 horas y las 20 horas, o fuera de ese horario si estuvieran abiertos al público o se estuviera llevando a cabo una actividad u actuación que tuvieran la misión de controlar.
Dichos agentes podrán solicitar que se les haga entrega de cualquier pieza o documento útil, llevarse una copia de los mismos y recoger, previa petición o in situ, las informaciones y los justificantes necesarios para el cumplimiento de
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CÓDIGO DE MEDIO AMBIENTE su misión.
El Fiscal de la República será previamente informado de las operaciones previstas para la investigación de las infracciones, pudiendo oponerse a las mismas.
Artículo L226-4 I. - En el marco de las actuaciones previstas en el artículo L.226-3, los agentes mencionados en el artículo L.226-2
podrán: 1° Tomar muestras o efectuar medidas con objeto de realizar análisis o ensayos; 2° Consignar, durante el tiempo necesario para el ejercicio de los controles, los bienes susceptibles de no estar en
conformidad con las disposiciones del presente título o con las adoptadas para su aplicación. II. - No se podrá proceder a esta consignación sin la autorización del Presidente del Tribunal de Grande Instance
en cuya circunscripción estuvieran los bienes en litigio, o del Magistrado designado a tales efectos. III. - Dicho Magistrado entrará a conocer del litigio a instancia de los agentes mencionados en el artículo L.226-2 y
resolverá dentro de las veinticuatro horas siguientes. IV. - El Presidente del Tribunal de Grande Instance comprobará que la petición de consignación que se le somete
esté fundamentada: dicha petición incluirá todos los elementos de información cuyo carácter justifique esta medida. V. - La medida de consignación no podrá tener una duración superior a quince días. En caso de dificultades
particulares vinculadas al examen de los bienes en litigio, el Presidente del Tribunal de Grande Instance podrá prorrogar la medida por un plazo de igual duración mediante resolución motivada.
VI. - Los bienes consignados quedarán a cargo de su poseedor. VII. - El Presidente del Tribunal de Grande Instance podrá ordenar la suspensión de la medida de consignación en
cualquier momento. Se tendrá derecho a esta suspensión en todos los casos en los que los agentes habilitados hubieran comprobado la idoneidad de los bienes consignados o la ejecución de las actuaciones necesarias para dar cumplimiento a los requerimientos.
Artículo L226-5 Las infracciones a las disposiciones del presente título y a los reglamentos dictados para su aplicación serán
comprobadas por atestados y los hechos recogidos en los mismos se presumirán ciertos, salvo prueba en contrario. Los atestados deberán remitirse al Fiscal de la República dentro de los cinco días siguientes a su incoación, bajo pena de nulidad. Se remitirá una copia al interesado dentro del mismo plazo.
Sección II Sanciones Artículos L226-6 a
L226-11
Artículo L226-6 El procedimiento de multa a tanto alzado será de aplicación a las faltas cometidas por infracción a las disposiciones
adoptadas en aplicación del presente título.
Artículo L226-7 (Disposición nº 2000-930 de 22 de septiembre de 2000 art. 2 Diario Oficial de 24 de septiembre de 2000 con entrada en vigor el 1 de junio de 2001)
Las medidas previstas en los artículos L.121-4, L.234-1, L.325-1 a L.325-3, L.325-6 a L.325-11 y L.417-1 del Código de la Circulación serán aplicables a los vehículos que no cumplieran con las disposiciones del presente título o los reglamentos dictados para su aplicación.
Artículo L226-8 I. - Cuando uno de los funcionarios o agentes mencionados en el artículo L.226-2 constate el incumplimiento de las
disposiciones previstas en el presente título o de los reglamentos y disposiciones adoptados para su aplicación, el Prefecto dirigirá un requerimiento instando al interesado a cumplir con estas obligaciones en un plazo determinado, y le solicitará que presente sus alegaciones en el mismo plazo.
II. - Transcurrido el plazo del requerimiento sin haberse cumplido lo ordenado, el Prefecto podrá: 1° Ordenar la consignación ante un contable público de una suma correspondiente al importe de las actuaciones o
trabajos necesarios para dar cumplimiento a los requerimientos. Esta suma será restituida conforme se vaya procediendo a su ejecución. Para el cobro de esta suma, el Estado ostenta un privilegio en los mismos términos que el que está contemplado en el artículo 1920 del Código General de Impuestos;
2° Ordenar que de oficio y por cuenta del interesado se proceda a la ejecución de las actuaciones o trabajos necesarios para dar cumplimiento a los requerimientos;
3° Ordenar la suspensión de la actividad, la paralización o el cese de funcionamiento del equipo o artefacto en cuestión, hasta la ejecución de las actuaciones o trabajos necesarios para dar cumplimiento a los requerimientos.
III. - Las sumas consignadas en aplicación de lo dispuesto en el apartado 1º del punto II, podrán ser utilizadas para pagar los gastos generados por la ejecución de oficio de las medidas previstas en los apartados 2º y 3º del punto II.
IV. - Las decisiones adoptadas en aplicación de los párrafos anteriores podrán ser objeto de un recurso contencioso-administrativo de plena jurisdicción.
V. - Cuando la orden de ejecución dictada en aplicación de una medida de consignación ordenada por el Prefecto fuera objeto de oposición ante el Juez del Tribunal Administrativo, el Presidente del Tribunal Administrativo o el Magistrado en quien éste delegue, resolviendo en procedimiento sumario y podrá decidir, a pesar de dicha oposición, a
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CÓDIGO DE MEDIO AMBIENTE solicitud del Prefecto o de cualquier persona interesada, que el recurso no tenga efecto suspensivo, si ninguna de las causas alegadas le pareciera procedente. El Presidente del Tribunal resolverá en el plazo de quince días a partir de la interposición de la demanda.
VI.- Durante el período de suspensión de la actividad, el explotador de una empresa industrial, comercial, agrícola o de servicios estará obligado a garantizar a su personal el pago de los salarios, indemnizaciones y remuneraciones de cualquier clase que pudieran corresponderle.
Artículo L226-9 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Será castigado con la pena de seis meses de prisión y multa de 7.500 euros el que obstaculizare el ejercicio de las funciones encomendadas por el presente título a los agentes mencionados en los artículos L.226-2 y L.216-3.
Cuando una empresa industrial, comercial, agrícola o de servicios emitiera sustancias contaminantes que generaran una contaminación atmosférica en el sentido del artículo L.220-2, infringiendo un requerimiento instado en aplicación del artículo L.226-8, el explotador será castigado con la pena de seis meses de prisión y una multa de 7.500 euros.
El explotador se expondrá igualmente a las penas accesorias mencionadas en los apartados 10º y 11º del artículo 131-6 del Código Penal, así como a la pena de la publicación mediante edictos de la resolución o la difusión de la misma en los periódicos o en cualquier medio de comunicación audiovisual, con arreglo a lo dispuesto en el artículo 131-35 del mismo Código.
Artículo L226-10 I. - Las personas jurídicas podrán ser declaradas penalmente responsables en las condiciones previstas en el
artículo 121-2 del Código Penal, de las infracciones a las disposiciones del presente título y a las adoptadas para su aplicación.
II. - Las penas a las que se exponen las personas jurídicas son: 1° La multa, en las condiciones previstas en el artículo 131-38 del Código Penal; 2° Las penas mencionadas en los apartados 2°, 3°, 4°, 5°, 6°, 8° y 9° del artículo 131-39 del mismo Código. III. - La inhabilitación mencionada en el apartado 2º del artículo 131-39 del Código Penal se refiere a la actividad en
cuyo ejercicio o con ocasión de cuyo ejercicio se hubiera cometido la infracción.
Artículo L226-11 Cuando una persona física o jurídica fuera declarada culpable de la infracción contemplada en el párrafo segundo
del artículo L.226-9, el Tribunal, en aplicación de los artículos 132-66 a 132-70 del Código Penal, podrá requerir a esta persona la ejecución de las actuaciones o trabajos necesarios para dar cumplimiento a los requerimientos ordenados por el Prefecto según lo dispuesto en el artículo L.226-8.
Capítulo VII Disposiciones especiales aplicables a las contaminaciones causadas por sustancias
radiactivas Artículo L227-1
Artículo L227-1 No estarán sujetas a las disposiciones del presente título las contaminaciones causadas por sustancias radiactivas,
cualesquiera que fueran, así como las condiciones de creación, funcionamiento y vigilancia de las instalaciones nucleares de base. Las disposiciones aplicables están contempladas en la Ley nº 61-842 de 2 de agosto de 1961, relativa a la lucha contra las contaminaciones atmosféricas y los olores, modificada y completada por los puntos I y II del artículo 44 de la Ley nº 96-1236 de 30 de diciembre de 1996, sobre el aire y el uso racional de la energía.
Capítulo VIII Disposiciones diversas Artículos L228-1 a
L228-2
Sección I Defensa Nacional Artículo L228-1
Artículo L228-1 Lo dispuesto en el presente título sólo será de aplicación a los vehículos y a los equipos especiales del ejército, de
la marina nacional y de la aviación militar, siempre que no sea incompatible con sus características técnicas de fabricación y empleo.
Sección II Itinerarios ciclistas Artículo L228-2
Artículo L228-2 Cuando se realicen o renueven vías urbanas, exceptuando las autopistas y las vías rápidas, se deberán
acondicionar itinerarios ciclistas en forma de pistas, indicaciones en el suelo o carriles independientes, en función de las necesidades y restricciones del tráfico.
El acondicionamiento de estos itinerarios ciclistas tendrá que tener en cuenta las orientaciones del plan de
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CÓDIGO DE MEDIO AMBIENTE desplazamientos urbanos, cuando existiera.
Capítulo IX Efecto invernadero Artículos L229-1 a
L229-24
Sección I Observatorio Nacional sobre los efectos del calentamiento climático Artículos L229-1 a
L229-4
Artículo L229-1 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 7º Diario Oficial de 3 de julio de 2003) (Disposición nº 2004-330 de 15 de abril de 2004 art. 1 I Diario Oficial de 17 de abril de 2004)
Se reconocen como prioridades nacionales la lucha contra la intensificación del efecto invernadero y la prevención de los riesgos generados por el calentamiento climático.
Artículo L229-2 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 7º Diario Oficial de 3 de julio de 2003) (Disposición nº 2004-330 de 15 de abril de 2004 art. 1 I Diario Oficial de 17 de abril de 2004)
Se creará un Observatorio Nacional sobre los efectos del calentamiento climático en Francia metropolitana y en los departamentos y territorios de Ultramar.
El Observatorio Nacional sobre los efectos del calentamiento climático estará encargado de recoger y difundir las informaciones, estudios e investigaciones sobre los riesgos vinculados al calentamiento climático y los fenómenos climáticos extremos en Francia metropolitana y en los departamentos y territorios de Ultramar, en coordinación con los centros e institutos de investigación interesados y el grupo intergubernamental de expertos sobre la evolución climática. Dentro del ámbito de su competencia, podrá informar a los ciudadanos y a las entidades territoriales.
Artículo L229-3 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 7º Diario Oficial de 3 de julio de 2003) (Disposición nº 2004-330 de 15 de abril de 2004 art. 1 I Diario Oficial de 17 de abril de 2004)
El Observatorio Nacional sobre los efectos del calentamiento climático elaborará todos los años un informe que entregará al Primer Ministro y al Parlamento. Dicho informe podrá contener recomendaciones sobre las medidas de prevención y adaptación susceptibles de reducir los riesgos vinculados al calentamiento climático y será hecho público.
Artículo L229-4 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 7º Diario Oficial de 3 de julio de 2003) (Disposición nº 2004-330 de 15 de abril de 2004 art. 1 I Diario Oficial de 17 de abril de 2004)
Por decreto se establecerá la sede, composición, procedimientos de designación de los miembros y normas de funcionamiento del Observatorio.
Sección II Derechos de emisión de gases de efecto invernadero Artículos L229-5 a
L229-19
Artículo L229-5 (Introducido por la Disposición nº 2004-330 de 15 de abril de 2004 art. 1 II Diario Oficial de 17 de abril de 2004)
Lo dispuesto en la presente sección será de aplicación a las instalaciones clasificadas que emitan gases de efecto invernadero a la atmósfera cuando éstas ejerzan alguna de las actividades enumeradas en un listado establecido por decreto adoptado en Conseil d'Etat. Dicho decreto tendrá asimismo en cuenta la capacidad de producción o rendimiento de la instalación.
Artículo L229-6 (Disposición nº 2004-330 de 15 de abril de 2004 art. 1 II Diario Oficial de 17 de abril de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 art. 80 XIV 1° Diario Oficial de 10 de diciembre de 2004)
Las instalaciones incluidas en el ámbito de aplicación de la presente sección estarán sujetas a una autorización de emisión de gases de efecto invernadero.
La autorización contemplada en el artículo L. 521-1 sustituirá a la estipulada en el párrafo anterior. Mediante orden dictada por el Ministro competente en materia de instalaciones clasificadas, se determinarán las
condiciones de aplicación de las obligaciones de vigilancia, declaración y control a las que estarán sujetas las instalaciones incluidas en el ámbito de aplicación de la presente sección. Dicha orden precisará asimismo los procedimientos de comprobación de las declaraciones de emisión mencionadas en el punto III del artículo L. 229-14.
Artículo L229-7 (Disposición nº 2004-330 de 15 de abril de 2004 art. 1 II Diario Oficial de 17 de abril de 2004) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 6 Diario Oficial de 27 de octubre de 2005)
A efectos de la presente sección, se entenderá por derecho de emisión de gases de efecto invernadero, una unidad contable correspondiente a la emisión del equivalente de una tonelada de dióxido de carbono.
En relación con cada una de las instalaciones beneficiarias de una autorización de emisión de gases de efecto
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CÓDIGO DE MEDIO AMBIENTE invernadero, el Estado asignará derechos de emisión por un periodo determinado, otorgándole cada año del citado periodo una parte de los derechos que le hayan sido asignados de este modo.
La cantidad de gases de efecto invernadero emitida por dicha instalación en el transcurso de un año civil se calculará, medirá y expresará en toneladas de dióxido de carbono.
Al finalizar cada uno de los años civiles del periodo de asignación, el titular de explotación devolverá al Estado, bajo pena de las sanciones previstas en el artículo L. 229-18, un número de derechos de emisión equivalente al total de emisiones de gases de efecto invernadero de sus instalaciones, y ello con independencia de que los citados derechos hayan sido otorgados o adquiridos con arreglo al artículo L. 229-15.No obstante, en el supuesto de que en un proceso de combustión, una instalación utilice gases proporcionados por otra instalación siderúrgica, los derechos correspondientes se asignarán y otorgarán al titular de explotación de esta última, siendo dicho titular el único responsable de las obligaciones previstas en la presente sección. El titular de explotación podrá, dentro del límite porcentual previsto en el punto VI del artículo L. 229-8, quedar exento de la obligación prevista en el cuarto párrafo del presente artículo mediante determinadas unidades estipuladas en el artículo L. 229-22, e inscritas en su cuenta del registro nacional citado en el artículo L. 229-16. Por decreto adoptado en Conseil d'Etat se precisarán las unidades susceptibles de ser utilizadas a dichos efectos.
Artículo L229-8 (Disposición nº 2004-330 de 15 de abril de 2004 art. 1 II Diario Oficial de 17 de abril de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 art. 80 XIV 2° Diario Oficial de 10 de diciembre de 2004) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 6 Diario Oficial de 27 de octubre de 2005)
I. - El Estado asignará derechos de emisión de gases de efecto invernadero por un periodo de tres años a contar desde el 1 de enero de 2005, y a continuación por periodos de cinco años, en el marco de un plan nacional establecido para cada periodo.
II. - Dicho plan establecerá la cantidad máxima de derechos de emisión asignados por el Estado durante un periodo determinado, exceptuando aquéllos que adquiriera en aplicación del punto II del artículo L. 229-15, así como los criterios de reparto de derechos y el listado de instalaciones beneficiaras.
III. - La cantidad máxima de derechos de emisión asignados durante un periodo se determinará en función de lo siguiente:
1º Los compromisos internacionales de Francia en materia de emisiones de gases de efecto invernadero; 2º La cuota de emisiones de las instalaciones sujetas a lo dispuesto en la presente sección con respecto a la
totalidad de las emisiones estimadas en Francia; 3º Las previsiones de evolución de la emisión de gases de efecto invernadero en todos los sectores de actividad,
así como de la producción de las actividades incluidas en las categorías mencionadas en el artículo L. 229-5; 4º Las posibilidades técnicas y económicas de reducción de emisiones de gases de efecto invernadero en el
conjunto de los sectores de actividad; 5º Las previsiones de creación, ampliación y cierre de las instalaciones incluidas en el ámbito de aplicación de la
presente sección. IV. - El plan repartirá los derechos de emisión entre las diferentes instalaciones citadas en el artículo L. 229-5.
Dicho reparto tendrá en cuenta las posibilidades técnicas y económicas de reducción de las emisiones de las actividades beneficiarias, las previsiones de evolución de la producción de dichas actividades, las medidas adoptadas con vistas a reducir las emisiones de gases de efecto invernadero antes de la aplicación del sistema de intercambio de derechos así como, si procediese, la competencia ejercida por las actividades realizadas en países exteriores a la Comunidad Europea.
V. - El plan mantendrá una reserva de derechos de emisión para su asignación a titulares de instalaciones autorizadas durante la vigencia del plan, así como a aquellos cuya autorización pudiera modificarse. El Estado podrá comprar derechos de emisión en aplicación del punto II del artículo L. 229-15 al objeto de completar dicha reserva.
VI. - Para cada uno de los periodos de cinco años previstos en el punto I, el plan establecerá, en forma de porcentaje del total de derechos asignados a cada instalación, la cantidad máxima de unidades citadas en el artículo L. 229-22, que los titulares de las instalaciones pueden utilizar de conformidad con el último párrafo del artículo L. 229-7.
Artículo L229-9 (Introducido por la Disposición nº 2004-330 de 15 de abril de 2004 art. 1 II Diario Oficial de 17 de abril de 2004)
Sin perjuicio de la protección del secreto industrial y el secreto comercial, el proyecto de plan nacional de asignación de derechos de emisión de gases de efecto invernadero será objeto de consulta pública, de acuerdo con los procedimientos establecidos por decreto, debiendo ser asimismo publicado y notificado a la Comisión Europea. El plan será aprobado por decreto adoptado en Conseil d'Etat.
Artículo L229-10 (Introducido por la Disposición nº 2004-330 de 15 de abril de 2004 art. 1 II Diario Oficial de 17 de abril de 2004)
Los derechos de emisión atribuidos en el transcurso del primer periodo trienal iniciado el 1 de enero de 2005 se concederán a título gratuito.
Artículo L229-11 (Introducido por la Disposición nº 2004-330 de 15 de abril de 2004 art. 1 II Diario Oficial de 17 de abril de 2004)
La autoridad administrativa notificará a los titulares de explotación de las instalaciones autorizadas a emitir gases de efecto invernadero la cantidad total de derechos de emisión asignados en relación con cada periodo cubierto por un plan, así como la cantidad atribuida cada año.
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CÓDIGO DE MEDIO AMBIENTE Por decreto adoptado en Conseil d'Etat se establecerán los procedimientos de notificación de las decisiones de
asignación y atribución de derechos de emisión, las condiciones en que se pondrá a disposición pública la información correspondiente, la normativa de otorgamiento anual de cuotas, la normativa aplicable en caso de cambio de titular de explotación, o en caso de cese o transferencia de la actividad, así como las condiciones de impugnación de las decisiones de asignación o atribución y del plan nacional de asignación de derechos de emisión previsto en el artículo L. 229-8.
Artículo L229-12 (Introducido por la Disposición nº 2004-330 de 15 de abril de 2004 art. 1 II Diario Oficial de 17 de abril de 2004)
I. - La autoridad administrativa, previa consulta pública, podrá solicitar a la Comisión Europea la exclusión temporal, hasta el 31 de diciembre de 2007, de determinadas instalaciones del ámbito de las obligaciones previstas en el artículo L. 229-7.
La autoridad administrativa establecerá, en aplicación de lo dispuesto en el libro V, las disposiciones necesarias para la vigilancia de las instalaciones sujetas a dicha exclusión, así como para la limitación de su emisión de gases de efecto invernadero en la misma proporción que sería aplicable si estuviesen sujetas a las obligaciones contempladas en el artículo L. 229-7.
Los titulares de explotación de dichas instalaciones estarán sujetos a unas exigencias en materia de vigilancia, declaración y comprobación equivalentes a las previstas para los titulares de explotación que participen en el sistema de intercambio de derechos de emisión, exponiéndose, en caso de superar el límite de emisión de gases establecido, al pago de una multa por tonelada de dióxido de carbono excedente, de idéntico importe al que prevé el artículo L. 229-18 en el caso de un derecho de emisión no devuelto.
II. - Durante el periodo trienal iniciado el 1 de enero de 2005, la autoridad administrativa, previo acuerdo de la Comisión Europea, podrá asignar a un titular de explotación derechos de emisión adicionales intransferibles, en caso de producirse circunstancias exteriores e imprevisibles, tanto para el titular como para el Estado, que conlleven una modificación sustancial de las emisiones de una o varias de sus instalaciones que no se pudiesen evitar de manera razonable.
Artículo L229-13 (Introducido por la Disposición nº 2004-330 de 15 de abril de 2004 art. 1 II Diario Oficial de 17 de abril de 2004)
Los derechos de emisión serán válidos para las emisiones producidas durante el periodo de vigencia del plan con arreglo al cual se hayan asignado y en tanto no hayan sido utilizados.
Los derechos de emisión atribuidos o adquiridos por un periodo de asignación que no fuesen utilizados durante el mismo y se cancelen en aplicación del artículo L. 229-14, serán devueltos al Estado y cancelados al iniciarse el siguiente periodo, atribuyéndose de forma simultánea para el nuevo periodo una cantidad idéntica de derechos de emisión válidos a los titulares de los derechos de emisión cancelados.
No obstante, al finalizar el periodo trienal iniciado el 1 de enero de 2005, y en el supuesto de que la aplicación del anterior párrafo pudiera comprometer el cumplimiento de los compromisos internacionales de control de emisiones de gases de efecto invernadero contraídos por Francia, la autoridad administrativa podrá decidir, al inicio del siguiente periodo, limitar los derechos de emisión atribuidos en virtud del citado párrafo exclusivamente a los titulares de explotación de instalaciones autorizadas a emitir gases de efecto invernadero, así como limitarlos, por cada titular, a una cantidad equivalente a la diferencia existente entre la que le fuera asignada en el periodo anterior y la cantidad de emisiones de sus instalaciones durante dicho periodo.
Artículo L229-14 (Introducido por la Disposición nº 2004-330 de 15 de abril de 2004 art. 1 II Diario Oficial de 17 de abril de 2004)
I. - Los derechos de emisión que los titulares de explotación devuelvan cada año al Estado en aplicación del artículo L. 229-7 serán cancelados.
II. - Los titulares de derechos de emisión podrán solicitar en cualquier momento al Estado la cancelación de los mismos.
III. - Los derechos de emisión se devolverán con arreglo a una declaración realizada por el titular de explotación sobre las emisiones de gases de efecto invernadero producidas por sus instalaciones. Dicha declaración deberá ser verificada, por cuenta del titular de explotación, por un organismo autorizado para ello por la autoridad administrativa, y posteriormente deberá ser aprobada por la Inspección de Instalaciones Clasificadas. La declaración de emisiones de gases de efecto invernadero del titular de explotación se considerará aprobada cuando la Inspección de Instalaciones Clasificadas no haya emitido observaciones dentro del plazo establecido por la orden prevista en el artículo L. 229-6.
Artículo L229-15 (Introducido por la Disposición nº 2004-330 de 15 de abril de 2004 art. 1 II Diario Oficial de 17 de abril de 2004)
I. - Los derechos de emisión de gases de efecto invernadero atribuidos a los titulares de explotación de instalaciones autorizadas a emitir dichos gases constituirán bienes muebles materializados de forma exclusiva por una inscripción en la cuenta de su titular, en el registro nacional citado en el artículo L. 229-16. Se tratará de instrumentos negociables y transmisibles mediante transferencia entre cuentas, y conferirán idénticos derechos a sus nuevos titulares. Podrán cederse a partir de su otorgamiento, sin perjuicio de lo dispuesto en el punto II del artículo L. 229-12, así como en el artículo L. 229-18.
El cambio de titularidad de los derechos de emisión implicará su inscripción en la cuenta del beneficiario por el encargado del registro, en la fecha y con arreglo a las condiciones establecidas por decreto.
II. - Los derechos de emisión podrán ser adquiridos, poseídos y cedidos por cualquier titular de explotación de una
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CÓDIGO DE MEDIO AMBIENTE instalación autorizada por un Estado miembro de la Comunidad Europea a emitir gases de efecto invernadero, por cualquier persona física natural de un Estado miembro de la Comunidad Europea, por cualquier persona jurídica cuyo domicilio social esté situado en uno de dichos Estados y por los propios Estados miembros de la Comunidad Europea.
Siempre que se haya suscrito un acuerdo de reconocimiento mutuo entre la Comunidad Europea y uno de los terceros países mencionados en el Anexo B del Protocolo realizado en Kyoto el día 11 de diciembre de 1997 en la Convención Marco de las Naciones Unidas sobre el Cambio Climático, y siempre que dicho país haya ratificado el Protocolo, los derechos de emisión podrán ser adquiridos, poseídos y cedidos por personas físicas naturales de dichos terceros países y por personas jurídicas cuyo domicilio social esté situado en los mismos.
III. - En el territorio nacional, tanto los derechos de emisión atribuidos por las autoridades francesas como aquellos que hayan sido atribuidos por la autoridad competente de los Estados miembros de la Comunidad Europea, o bien de cualquier otro Estado que sea parte de un acuerdo de reconocimiento mutuo suscrito con esta última, producirán los mismos efectos jurídicos.
IV. - Cuando la reserva constituida en aplicación del punto V del artículo esté agotada y el Estado no disponga de derechos de emisión para asignar a los titulares de explotación, éstos últimos quedarán exentos del cumplimiento de las obligaciones establecidas en la presente sección, y en particular de la obligación de devolución de derechos de emisión prevista en el artículo L. 229-7. Asimismo, no se les otorgará derechos de emisión en relación con el plan vigente. La autoridad competente establecerá determinadas disposiciones aplicables a los titulares de explotación de dichas instalaciones, en aplicación de lo dispuesto en el libro V del presente Código y con arreglo a las condiciones establecidas en el segundo y tercer párrafos del punto I del artículo L. 229-12.
Artículo L229-16 (Introducido por la Disposición nº 2004-330 de 15 de abril de 2004 art. 1 II Diario Oficial de 17 de abril de 2004)
Los derechos de emisión atribuidos, poseídos, transferidos y cancelados se contabilizarán en un registro nacional de derechos de emisión de gases de efecto invernadero. Podrá poseer derechos de emisión y abrir una cuenta en dicho Registro cualquier persona de las citadas en el punto II del artículo L. 229-15.
El registro nacional incluirá una cuenta por cada titular de derechos de emisión, pudiendo acceder al mismo los ciudadanos en las condiciones establecidas por decreto. El mantenimiento del registro nacional podrá delegarse en una persona jurídica designada por un decreto adoptado
en Conseil d'Etat que establezca asimismo las modalidades de aplicación del presente artículo, y en particular las funciones del delegado, las condiciones de su remuneración y las modalidades de inscripción en el registro nacional de las diferentes operaciones relativas a los derechos de emisión.
Artículo L229-17 (Introducido por la Disposición nº 2004-330 de 15 de abril de 2004 art. 1 II Diario Oficial de 17 de abril de 2004)
El Estado, previo acuerdo de la Comunidad Europea, podrá autorizar que varios titulares de explotación de instalaciones pertenecientes al mismo sector gestionen conjuntamente, tanto durante el periodo trienal iniciado el 1 de enero de 2005 como en el periodo quinquenal siguiente, los derechos de emisión relativos a cada una de sus instalaciones.
Cuando la autorización se otorgue a varios titulares de explotación, éstos deberán designar a un mandatario, al que serán de aplicación las disposiciones de la presente sección.
En el registro nacional se abrirá una única cuenta para las instalaciones cuyos derechos de emisión se gestionen de forma conjunta. El mandatario designado por los titulares de explotación estará encargado de la gestión de los derechos de emisión inscritos en dicha cuenta. Si el mandatario no satisficiera las sanciones contempladas en el punto II del artículo L. 229-18 en caso de no devolución de derechos de emisión, el titular de explotación de cada una de las instalaciones será responsable de la devolución de derechos correspondiente a las emisiones procedentes de su instalación, exponiéndose a las sanciones contempladas en la presente sección en caso de incumplimiento de esta obligación.
Por decreto adoptado en Conseil d'Etat se determinarán las modalidades de aplicación de las disposiciones del presente artículo.
Artículo L229-18 (Introducido por la Disposición nº 2004-330 de 15 de abril de 2004 art. 1 II Diario Oficial de 17 de abril de 2004)
I. - El titular de explotación no podrá ceder los derechos de emisión que posea, hasta el límite de los que hayan sido atribuidos en relación con una instalación y un año concreto:
- cuando no hubiera declarado las emisiones de la instalación durante dicho año dentro del plazo estipulado por decreto;
- o cuando la Inspección de instalaciones clasificadas constatara que la declaración relativa a las emisiones de la instalación durante dicho año no cumple las condiciones establecidas por la orden prevista en el artículo L. 229-6. En tal caso, la decisión, que deberá ser motivada, se emitirá como máximo a la expiración del plazo mencionado en el punto III del artículo L. 229-14.
El titular de explotación recuperará la disponibilidad de sus derechos de emisión cuando su declaración sea considerada satisfactoria o, en su defecto, cuando el volumen de emisiones haya sido establecido de oficio por la autoridad administrativa, basándose en un cálculo a tanto alzado realizado a más tardar dos meses después de haber sido informado del carácter insatisfactorio de su declaración o, en caso de no haber declaración, el 31 de mayo como máximo. Una orden precisará los métodos empleados para realizar dicho cálculo y las condiciones de consulta previa del titular de explotación.
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CÓDIGO DE MEDIO AMBIENTE II. - Cada año, si tras la expiración de un plazo fijado por decreto, el titular de explotación o el mandatario no
hubieran devuelto un número de derechos de emisión suficiente para cubrir sus emisiones del año anterior, y si la autoridad encargada del mantenimiento del registro nacional hubiera informado a la autoridad administrativa del incumplimiento de esta obligación y de la existencia de un excedente de emisiones de gases de efecto invernadero con respecto al número de derechos de emisión devueltos, la autoridad competente dirigirá un requerimiento al titular de explotación o al mandatario, instándole a satisfacer dicha obligación en el plazo de un mes.
Transcurrido el plazo previsto sin que se hubiera cumplido dicho requerimiento, la autoridad administrativa impondrá al titular de explotación o al mandatario una multa proporcional al número de derechos de emisión no devueltos. El pago de la multa no eximirá al titular de explotación o al mandatario de la obligación de devolver una cantidad de derechos de emisión equivalente al excedente de emisiones, obligación que deberá cumplirse a más tardar en el transcurso del siguiente año. En tanto no cumpla dicha obligación, el titular de explotación no podrá acceder a sus derechos de emisión y se le aplicará una nueva multa por cada año de infracción.
El importe de la sanción se establecerá en 40 euros por derecho de emisión no devuelto en relación con el periodo trienal iniciado el 1 de enero de 2005 y en 100 euros en relación con los siguientes periodos. La recaudación será realizada en beneficio del Tesoro Público en las mismas condiciones que las establecidas en materia de créditos no relativos al impuesto y al patrimonio.
La resolución que dicte la sanción podrá además prever que el nombre del titular de explotación o del mandatario sea publicado en la fecha de su firmeza.
Artículo L229-19 (Introducido por la Disposición nº 2004-330 de 15 de abril de 2004 art. 1 II Diario Oficial de 17 de abril de 2004)
Las modalidades de aplicación de la presente sección serán determinadas por decreto adoptado en Conseil d'Etat.
Sección III Realización de las actividades de proyectos previstas por e l Protocolo de
Kyoto de 11 de diciembre de 1997, en el marco de la Convención Marco de las Naciones Unidas sobre el Cambio Climático, de 9
Artículos L229-20 a L229-24
Artículo L229-20 (Introducido por la Ley nº 2005-1319 de 26 de octubre de 2005 art. 6 Diario Oficial de 27 de octubre de 2005)
I. - En el sentido del presente capítulo, se entenderá por actividad de proyecto un proyecto aprobado con arreglo a lo dispuesto en los artículos 6 ó 12 del Protocolo adoptado en Kyoto el 11 de diciembre de 1997 en la Convención Marco de las Naciones Unidas sobre el Cambio Climático, así como a las decisiones adoptadas por los signatarios para su aplicación por parte de uno o varios de los Estados citados en el anexo I de la Convención Marco de las Naciones Unidas sobre el Cambio Climático que hayan ratificado el Protocolo de Kyoto.
II. - Las condiciones en que el Ministro de Medio Ambiente aprobará las actividades de proyectos serán establecidas por el decreto adoptado en Conseil d'Etat previsto en el artículo L. 229-24. Dicha aprobación tendrá valor de autorización en relación con aquellas personas que soliciten participar en la actividad de proyecto en cuestión.
Artículo L229-21 (Introducido por la Ley nº 2005-1319 de 26 de octubre de 2005 art. 6 Diario Oficial de 27 de octubre de 2005)
Siempre que Francia satisfaga los criterios de elegibilidad relativos a las cesiones y adquisiciones de unidades definidas en el citado Protocolo de Kyoto y en las decisiones adoptadas por los signatarios para su aplicación, cualquier persona podrá adquirir, poseer y ceder las unidades contempladas en el artículo L. 229-22 resultantes de la realización de actividades de proyectos.
Al objeto de garantizar el cumplimiento de los compromisos internacionales de control de emisiones de gases de efecto invernadero contraídos por Francia, el Ministro de Medio Ambiente podrá limitar el arrastre de las unidades atribuidas e incluidas en el registro nacional citado en el artículo L. 229-16 al final de cada periodo de cinco años previsto en el punto I del artículo L. 229-8, en las condiciones establecidas por el decreto adoptado en Conseil d'Etat previsto por el artículo L. 229-24.
Artículo L229-22 (Introducido por la Ley nº 2005-1319 de 26 de octubre de 2005 art. 6 Diario Oficial de 27 de octubre de 2005)
Las unidades de reducción de emisiones y las unidades de reducción de emisiones certificadas, respectivamente atribuidas según lo dispuesto en los artículos 6 y 12 del citado Protocolo de Kyoto y en las decisiones adoptadas por los signatarios para la aplicación del mismo, constituirán bienes muebles materializados de forma exclusiva por una inscripción en la cuenta de su titular, en el registro nacional citado en el artículo L. 229-16.
Cada una de estas unidades representará la emisión del equivalente de una tonelada de dióxido de carbono.
Artículo L229-23 (Introducido por la Ley nº 2005-1319 de 26 de octubre de 2005 art. 6 Diario Oficial de 27 de octubre de 2005)
Las actividades de proyectos previstas por el artículo 6 del citado protocolo de Kyoto que se hayan puesto en practica en el territorio nacional y reduzcan o limiten de forma directa las emisiones de las instalaciones contempladas en el artículo L. 229-5, sólo podrán motivar la atribución de unidades de reducción de emisiones tras la cancelación de una cantidad equivalente de cuotas de emisión de gases de efecto invernadero en la cuenta del titular de explotación de la instalación en cuestión en el registro nacional citado en el artículo L. 229-16.
Artículo L229-24
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CÓDIGO DE MEDIO AMBIENTE (Introducido por la Ley nº 2005-1319 de 26 de octubre de 2005 art. 6 Diario Oficial de 27 de octubre de 2005)
Un decreto adoptado en Conseil d'Etat precisará las modalidades de aplicación de la presente sección.
LIBRO III Espacios naturales Artículos L310-1 a
L300-3 Artículo L300-1
Las disposiciones relativas a la prevención de los incendios forestales y a los bosques de protección se encuentran contempladas en el Código Forestal (libro III, título II y libro IV, título I).
Artículo L300-2 Las disposiciones relativas a los espacios forestales clasificados por los planes de ocupación de los suelos se
encuentran contempladas en el Código de Urbanismo (libro I, título III).
Artículo L300-3 (Disposición nº 2004-178 de 20 de febrero de 2004 art. 6 I Diario Oficial de 24 de febrero de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 art. 78 XIV e 1° Diario Oficial de 10 de diciembre de 2004)
Las disposiciones relativas a la Fundación del Patrimonio por su contribución a la conservación de elementos de espacios naturales o paisajísticos de particular interés que están amenazados de degradación, desaparición o dispersión, están enunciadas en el artículo L. 143-2 del Código del Patrimonio, reproducido a continuación:
"Art. L. 143-2 - La "Fundación del Patrimonio" tiene por objeto promover el conocimiento, la conservación y la valorización del patrimonio nacional. Como parte de su misión, se dedica a la identificación, preservación y valorización del patrimonio no protegido.
"Asimismo, contribuye a salvaguardar monumentos, edificios, conjuntos mobiliarios o elementos de espacios naturales o paisajísticos de particular interés que están amenazados de degradación, desaparición o dispersión, contribuyendo de este modo a promover el empleo, la inserción social, la formación y la transmisión de los conocimientos y técnicas en los sectores de la restauración y rehabilitación del patrimonio y los espacios naturales.
"La Fundación presta ayuda a personas públicas o privadas, en particular en forma de subvenciones para la adquisición, el mantenimiento, la gestión y la presentación al público de dichos bienes, con independencia de que hayan sido objeto o no de medidas de protección previstas por el presente Código.
"Del mismo modo, tiene la facultad de adquirir los bienes citados en el tercer párrafo cuando la adquisición sea necesaria para realizar su labor de salvaguarda.
"La Fundación podrá incluir en un catálogo especial los elementos del patrimonio no protegido y los espacios naturales. La inclusión en dicho catálogo podrá tenerse en cuenta para la obtención de la autorización prevista en el apartado1º ter del punto II del artículo 156 del Código General de Impuestos.
Título I Inventario y valorización del Patrimonio Natural Artículos L310-1 a
L310-3
Artículo L310-1 I. - El Estado establecerá, en cada departamento, un inventario departamental del Patrimonio Natural. II. - En este inventario figurarán: 1° Los espacios naturales, paisajes y medios naturales definidos en aplicación de los textos cuya lista será
establecida por decreto; 2° Las medidas de protección del medio ambiente adoptadas en aplicación de los textos cuya lista sea establecida
por decreto, así como los medios de gestión y valorización correspondientes, en su caso. III. - El inventario departamental del patrimonio natural será objeto de modificaciones periódicas a fin de tener en
cuenta los cambios que se hubieran producido en el departamento, en las listas de espacios naturales, paisajes y entornos y en las medidas de protección citadas en los párrafos anteriores.
IV. - Este inventario se pondrá a disposición pública para consulta. Asimismo, se pondrá a disposición del comisario de investigación o de la Comisión de investigación cuando se realizara una consulta pública sobre una obra o construcción contenida en el mismo. Será comunicado a las asociaciones departamentales autorizadas de protección del medio ambiente que estén interesadas, previa solicitud.
Artículo L310-2 (Disposición nº 2004-637 de 1 de julio de 2004 art. 27 IV Diario Oficial de 2 de julio de 2004)
El Estado, dentro del marco de sus competencias elaborará un informe orientativo enunciando las medidas previstas para asegurar la protección y la gestión de los espacios naturales, paisajes y medios naturales.
El proyecto de informe será sometido a consulta previa del Consejo General. Dicho proyecto se pondrá a disposición pública durante dos meses, será aprobado por orden prefectoral y
posteriormente publicado. El informe orientativo será revisado a iniciativa del Prefecto, tras un período de cinco años como máximo, con
arreglo al procedimiento previsto para su adopción. Por decreto adoptado en Conseil d'Etat se precisarán las condiciones de aplicación del presente artículo.
Artículo L310-3
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CÓDIGO DE MEDIO AMBIENTE De conformidad con lo establecido en el artículo 38-1 de la Ley nº 95-115 de 4 de febrero de 1995, de orientación
para la ordenación y el desarrollo del territorio, modificada, que se transcribe a continuación: "Art. 38-1. - El fondo de gestión de los medios naturales contribuirá a la financiación de los proyectos de interés
colectivo que concurran a la protección, rehabilitación o gestión de los medios y hábitats naturales. Su aplicación tendrá en cuenta las orientaciones del plan de servicios colectivos de los espacios naturales y
rurales. "
Título II Litoral Artículos L321-1 a
L322-14
Capítulo I Protección y ordenación del litoral Artículos L321-1 a
L321-12
Sección I Disposiciones generales Artículos L321-1 a
L321-2
Artículo L321-1 I. - El litoral es una entidad geográfica que requiere una política específica de ordenación, protección y valorización. II. - La puesta en práctica de esta política de interés general implica una coordinación de las acciones del Estado y
de las entidades locales, o de sus agrupaciones, para conseguir los siguientes objetivos: 1° Realizar un esfuerzo de investigación e innovación sobre las peculiaridades y los recursos del litoral; 2° Proteger los equilibrios biológicos y ecológicos, la lucha contra la erosión, la preservación de los espacios
naturales y paisajes y el patrimonio; 3° Preservar y desarrollar las actividades económicas relacionadas con el agua, como la pesca, los cultivos
marinos, las actividades portuarias, la construcción y reparación navales y los transportes marítimos; 4° Conservar o desarrollar las actividades agrícolas o silvícolas, industriales, artesanales y turísticas en las zonas
litorales.
Artículo L321-2 A efectos del presente capítulo, serán considerados municipios litorales aquellos municipios de Francia
metropolitana y de los departamentos de Ultramar que sean: 1° Ribereños de los mares y océanos, de las lagunas de agua salada y de los lagos, lagunas y embalses interiores
con una superficie superior a 1.000 hectáreas; 2° Ribereños de los estuarios y de los deltas cuando estén situados aguas abajo de los límites de salobridad de las
aguas y contribuyan al equilibrio económico y ecológico del litoraL.La lista de estos municipios será establecida por decreto adoptado en Conseil d'Etat, previa consulta de los Consejos municipales interesados.
Sección II Ordenación y urbanismo Artículos L321-3 a
L321-7
Artículo L321-3 La acogida de las embarcaciones de recreo será organizada de tal manera que éstas se integren en los espacios
naturales y urbanos cumpliendo con las normas establecidas por los planes de valorización del mar, definidos en el artículo 57 de la Ley nº 83-8 de 7 de junio de 1983, relativa al reparto de competencias entre los municipios, los departamentos, las regiones y el Estado.
Artículo L321-4 La autoridad que otorgase la concesión de un puerto de recreo autorizará la misma imponiendo, si procede, el
reacondicionamiento de una superficie de playa artificial o de un potencial marisquero o acuícola equivalente a la que hubiera sido destruida por las obras de construcción.
Artículo L321-5 Las decisiones sobre el uso del dominio público marítimo tendrán en cuenta la identidad de las zonas consideradas
y la de los espacios terrestres colindantes, así como las exigencias para preservar los espacios naturales, los paisajes del litoral y los recursos biológicos. Para lograr este objetivo, las decisiones se tomarán en coordinación con las relativas a los terrenos colindantes destinados a un uso público.
Sin perjuicio de lo dispuesto en los textos relativos a la defensa nacional y de las necesidades de la seguridad marítima, cualquier cambio substancial del uso dado a zonas del dominio público marítimo será previamente sometido a consulta pública, con arreglo a los procedimientos previstos en el capítulo III del título II del libro I del presente Código.
Artículo L321-6 Con excepción de las zonas portuarias e industriales portuarias, y sin perjuicio de la ejecución de las actuaciones
de defensa contra el mar y de la realización de las construcciones e instalaciones necesarias para la seguridad marítima, la defensa nacional, la pesca marítima, el cultivo de sal y los cultivos marinos, no se podrá atentar contra el
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CÓDIGO DE MEDIO AMBIENTE estado natural de la ribera del mar, en especial construyendo diques de contención y realizando obras de desecación, de escollera o de terraplenado, salvo que fuera para construcciones o instalaciones relacionadas con el desarrollo de un servicio público o para la ejecución de una obra pública cuya localización al borde del mar estuviera justificada por imperativos topográficos o técnicos que hubieran dado lugar a una declaración de utilidad pública.
No obstante, los terrenos ganados al mar con anterioridad al 3 de enero de 1986 se regirán por la legislación anterior.
Artículo L321-7 Las demás disposiciones especiales del litoral correspondientes a la ejecución de toda clase de obras,
construcciones e instalaciones se encuentran contempladas en el Código de Urbanismo (libro I, título IV, capítulo VI).
Sección III Extracción de materiales Artículo L321-8
Artículo L321-8 Las extracciones de materiales no citados en el artículo 2 del Código de Minería serán limitadas o prohibidas
cuando pudieran comprometer, directa o indirectamente, la integridad de las playas, dunas litorales, acantilados, pantanos, esteros, zonas de hierbas acuáticas, frezaderos, bancos de moluscos vivos y explotaciones de cultivos marinos.
No obstante, esta disposición no podrá obstaculizar los trabajos de dragado realizados en los puertos y en sus canales, ni aquéllos cuya finalidad fuera la conservación o la protección de espacios naturales de interés
Sección IV Acceso a la ribera Artículos L321-9 a
L321-10
Artículo L321-9 (Ley nº 2002-276 de 27 de febrero de 2002 art. 115 Diario Oficial de 28 de febrero de 2002)
El acceso de los peatones a las playas será libre, salvo que por motivos justificados de seguridad, defensa nacional o protección del medio ambiente se requiriesen disposiciones específicas.
El uso libre y gratuito por parte de los usuarios será el destino fundamental de las playas, al igual que las actividades de pesca y de cultivo marino.
Las concesiones de playa serán autorizadas o renovadas tras consulta pública. Éstas preservarán la libre circulación por la playa y el libre uso por parte de los usuarios de un espacio con una anchura significativa a lo largo del mar.
Todo contrato de concesión tendrá que determinar la anchura de este espacio en función de las características de cada lugar.
El concesionario hará públicas las concesiones de playa y los subcontratos de explotación. En la ribera del mar y en las dunas y playas pertenecientes al dominio público o privado, salvo autorización
otorgada por el Prefecto tras consulta con el Alcalde, estarán prohibidos, fuera de los caminos habilitados para ello, el estacionamiento y circulación de los vehículos terrestres a motor que no sean vehículos de protección civil, policía o explotación y que pertenezcan a personas públicas, cuando estos lugares estuvieran abiertos al público.
Las concesiones de playa serán autorizadas concediendo prioridad a los municipios o agrupaciones de municipios o, tras su consulta si éstos renunciaran a su prioridad, a personas públicas o privadas previa publicidad y concurso de adjudicación. Los eventuales subcontratos de explotación serán otorgados igualmente previa publicidad y concurso de adjudicación.
Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente artículo.
Artículo L321-10 Las demás disposiciones relativas al acceso a la ribera están regidas por los artículos L.160-6, L.160-6-1, L.160-7 y
L.160-8 del Código de Urbanismo, que se transcriben a continuación: "Art. L.160-6. - Las propiedades privadas ribereñas del dominio público marítimo serán gravadas con una
servidumbre constituida por una franja de tres metros de ancho y destinada exclusivamente a asegurar el paso de los peatones.
Mediante decisión motivada, adoptada tras el dictamen del Consejo municipal o de los Consejos municipales interesados y en base al resultado de una consulta pública que será realizada en las mismas condiciones que las establecidas en materia de expropiación, la autoridad administrativa podrá:
a) Modificar el trazado o las características de la servidumbre para asegurar la continuidad del itinerario de los peatones o su libre acceso a la ribera del mar, teniendo en cuenta, en particular, la presencia de obstáculos de toda índole, y para tener en consideración los caminos o normas locales existentes. Excepcionalmente, el trazado modificado podrá gravar propiedades que no sean ribereñas del dominio público marítimo;
b) Suspenderla, a título excepcional. Salvo cuando la constitución de la servidumbre fuera el único medio para asegurar la continuidad del itinerario de
los peatones o su libre acceso a la ribera del mar, la servidumbre mencionada en los párrafos 1 y 2 anteriores no podrá gravar los terrenos situados a menos de quince metros de los edificios utilizados como vivienda y edificados antes del 1 de enero de 1976, ni gravar los terrenos colindantes con viviendas que estuvieran cerrados con muros a fecha de 1 de enero de 1976."
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CÓDIGO DE MEDIO AMBIENTE "Art. L.160-6-1. - Se podrá constituir una servidumbre de paso para peatones, transversal a la ribera, en las vías y
caminos privados de uso colectivo ya existentes, excepto en aquéllos que estén reservados para uso profesional, con arreglo al procedimiento previsto en el segundo párrafo del artículo L.160-6.
Esta servidumbre tendrá por objeto unir las vías públicas a la ribera del mar o a los senderos de acceso inmediato a la misma, en caso de no existir una vía pública situada a menos de quinientos metros que permitiera el acceso a la ribera.
Lo dispuesto en el artículo L.160-7 será de aplicación a esta servidumbre. " "Art. L.160-7. - La servidumbre constituida por el artículo L.160-6 sólo dará derecho a indemnización cuando cause
al propietario un perjuicio directo, material y real. La solicitud de indemnización tendrá que remitirse a la autoridad competente en el plazo de seis meses a partir de
la fecha en que el perjuicio se hubiera producido, bajo pena de preclusión. La indemnización será fijada mediante acuerdo amistoso o, en caso de desacuerdo, en las condiciones
establecidas en el segundo párrafo del artículo L.160-5. El importe de la indemnización por la privación del derecho al disfrute se calculará teniendo en cuenta el
aprovechamiento habitual anterior del terreno. No serán civilmente responsables los propietarios de terrenos, vías y caminos gravados por las servidumbres
definidas en los artículos L.160-6 y L.160-6-1, por los perjuicios causados o sufridos por los beneficiarios de estas servidumbres. "
"Art. L.160-8. - Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación de los artículos L.160-6 y L.160-7 y fijará la fecha de su entrada en vigor.
El decreto a que se refiere el párrafo anterior determinará asimismo los casos en los que la distancia de quince metros fijada en el artículo L.160 (aL.3) pueda ser reducida, a título excepcionaL."
Sección V Construcciones que unen las islas al continente Artículo L321-11
Artículo L321-11 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
A petición de la mayoría de los municipios o de las agrupaciones de municipios competentes en materia de ordenación, urbanismo o medio ambiente de una isla marítima unida al continente por una construcción, el Consejo General podrá establecer el cobro de una tasa departamental de paso a los pasajeros de cada vehículo terrestre a motor que pase por esta construcción entre el continente y la isla.
La tasa mencionada en el párrafo primero será establecida y cobrada en beneficio del departamento. Podrá ser percibida por el explotador de la construcción para su posterior devolución al departamento.
El importe de esta tasa, que no podrá exceder de 3,05 euros por vehículo, será fijado por el Consejo General, previo acuerdo con la mayoría de los municipios y agrupaciones de municipios mencionados en el párrafo primero.
El acuerdo adoptado por el Consejo General podrá prever diferentes tarifas o su gratuidad según las distintas categoría de usuarios, a fin de tener en cuenta bien una necesidad de interés general relacionada con los espacios naturales protegidos, bien la situación particular de determinados usuarios y, en especial, de aquéllos que tienen su domicilio o su lugar de trabajo en la isla referida, o su domicilio en el mencionado departamento, o bien el cumplimiento de una misión de servicio público.
El importe de la tasa será anotado en el presupuesto del departamento. Se destinará, en dichas islas, a la financiación exclusiva de medidas de protección y gestión de los espacios naturales, en el marco de un contrato concluido entre el Prefecto, el Consejo General y los municipios y agrupaciones de municipios insulares mencionados en el párrafo primero. Tras deducción de los costes generados por su recaudación, así como de los gastos derivados de las actuaciones en las que el departamento es la entidad adjudicadora, será transferido al presupuesto de los municipios y agrupaciones de municipios que hubieran sido partes en el contrato.
Un decreto adoptado en Conseil d'Etat precisará las condiciones de aplicación del presente artículo.
Sección VI Transporte marítimo de pasajeros hacia espacios protegidos Artículo L321-12
Artículo L321-12 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 1 I Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Ley nº 2002-276 de 27 de febrero de 2002 art. 166 Diario Oficial de 28 de febrero de 2002)
De conformidad con lo establecido en el artículo 285 quater del Código de Aduanas, que se transcribe a continuación:
Las empresas de transporte público marítimo devengarán una tasa que será calculada en función del número de pasajeros embarcados con destino a:
- un espacio natural clasificado o catalogado en virtud de la Ley de 2 de mayo de 1930, de reorganización de la protección de los monumentos naturales y de los lugares de carácter artístico, histórico, científico, legendario o pintoresco;
- un Parque Nacional creado según lo dispuesto en el artículo L.241-1 del libro II nuevo del Código Rural; - una Reserva Natural creada según lo dispuesto en el artículo L.242-1 del libro II nuevo del mismo Código;
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CÓDIGO DE MEDIO AMBIENTE - un espacio natural del patrimonio adscrito al Conservatorio del Espacio Litoral y de las Riberas Lacustres, o en el
que éste hubiera constituido una servidumbre de protección, según lo dispuesto en el artículo L.243-1 del libro II nuevo del mismo Código;
- o un puerto que preste servicio exclusivo o principal hacia uno de los espacios protegidos anteriormente mencionados, pero que no esté situado dentro de ellos.
La lista de los espacios naturales, parques, reservas y puertos mencionados en los párrafos segundo a sexto se establecerá por decreto. Los espacios naturales inscritos en virtud de la Ley de 2 de mayo de 1930 antes citada, no podrán figurar en esta lista, salvo a petición de los municipios interesados.
La tasa será añadida al precio cobrado a los pasajeros. Será comprobada, cobrada y controlada por los servicios de aduanas con las mismas garantías, sanciones y privilegios que los establecidos en materia de aranceles aduaneros. El Estado percibirá una parte del importe de esta tasa, por los gastos derivados del cálculo de la base y de la recaudación, que será igual al 2,5% de dicho importe. La tarifa de la tasa será fijada por Orden del Ministro competente en materia de presupuesto hasta el límite de 1,52 euro por pasajero. Esta Orden podrá prever tarifas diferentes o la gratuidad según las diversas categoría de usuarios, a fin de tener en cuenta bien una necesidad de interés general relacionada con el espacio protegido, bien la situación particular de determinados usuarios y, en especial, de aquéllos que tienen su domicilio o su lugar de trabajo dentro del espacio protegido o en la isla cuyo territorio, total o parcialmente, forma parte del espacio protegido.
La tasa será recaudada en beneficio de la entidad pública encargada de la gestión del espacio natural protegido o, en su defecto, del municipio en cuyo territorio se encontrase el espacio protegido y cuya preservación le hubiera sido asignada.
Un decreto adoptado en Conseil d'Etat precisará las condiciones de aplicación del presente artículo.
Capítulo II Conservatorio del Espacio Litoral y de las Riberas Lacustres Artículos L322-1 a
L322-14
Sección I Disposiciones generales Artículos L322-1 a
L322-2
Artículo L322-1 (Ley nº 2002-276 de 27 de febrero de 2002 art. 160 I, II Diario Oficial de 28 de febrero de 2002) (Ley nº 2005-157 de 23 de febrero de 2005 art. 133 I, II Diario Oficial de 24 de febrero de 2005)
I. - El Conservatorio del Espacio Litoral y de las Riberas Lacustres es un organismo público estatal de carácter administrativo, que tiene por misión poner en práctica, previa consulta con los Consejos municipales y en colaboración con las entidades territoriales interesadas, una política urbanística de salvaguarda del espacio litoral y de protección de los espacios naturales y del equilibrio ecológico:
1° En los cantones costeros delimitados a fecha de 10 de julio de 1975; 2° En los municipios ribereños de los mares, océanos, lagunas de aguas saladas o lagos, lagunas y embalses
interiores con una superficie superior a 1.000 hectáreas; 3° En los municipios ribereños de los estuarios y los deltas, siempre que la totalidad o parte de sus riberas estén
situadas aguas debajo de los límites de salobridad de las aguas; 4° Derogado II. - Podrá presentar a las entidades públicas todas las propuestas que estén relacionadas con su misión y, en
especial, proponer las medidas apropiadas para evitar cualquier construcción en terrenos contiguos al dominio público marítimo.
El Conservatorio del Espacio Litoral y de las Riberas Lacustres también podrá ejercer funciones en el dominio público marítimo que le hubiera sido asignado o confiado, a fin de promover una gestión más integrada de las zonas costeras.
III. - Mediante orden prefectoral y previo acuerdo de su consejo de administración, se podrá ampliar su intervención a sectores geográficos limítrofes de los cantones y municipios mencionados en el punto I y que, junto con los mismos, constituyan una unidad ecológica o paisajística, así como a las zonas húmedas situadas en los departamentos costeros.
Artículo L322-2 Las condiciones de aplicación del presente capítulo serán determinadas por decreto adoptado en Conseil d'Etat.
Sección II Patrimonio del Conservatorio Artículos L322-3 a
L322-10-3
Subsección 1 Constitución y transmisiones Artículos L322-3 a
L322-8
Artículo L322-3
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CÓDIGO DE MEDIO AMBIENTE Para la consecución de los objetivos definidos en el artículo L.322-1, el Conservatorio del Espacio Litoral y de las
Riberas Lacustres podrá proceder a toda clase de operaciones inmobiliarias. No obstante, sólo se permitirán las transmisiones de bienes inmuebles de su propio patrimonio tras autorización otorgada por decreto adoptado en Conseil d'Etat, a propuesta del Consejo de Administración y con una mayoría de tres cuartas partes de los miembros presentes o representados.
Artículo L322-4 El Conservatorio del Espacio Litoral y de las Riberas Lacustres podrá expropiar cualquier bien inmueble y ejercer,
en defecto del departamento, el derecho de tanteo y retracto previsto en el artículo L.142-3 del Código de Urbanismo.
Artículo L322-5 Cuando el Conservatorio del Espacio Litoral y de las Riberas Lacustres adquiera por medio de acuerdo amistoso
bienes gravados con servidumbres constituidas en aplicación del Código de Urbanismo, el precio de adquisición será fijado en función del valor de los bienes teniendo en cuenta las servidumbres existentes, sin que estas últimas den derecho a suplemento alguno en el precio.
Artículo L322-6 (Ley nº 2002-276 de 27 de febrero de 2002 art. 160 III Diario Oficial de 28 de febrero de 2002)
El Conservatorio del Espacio Litoral y de las Riberas Lacustres podrá ser beneficiario, a título gratuito, de los derechos sobre bienes inmuebles pertenecientes al dominio público o privado del Estado. Sin embargo, cuando el servicio beneficiario esté dotado de autonomía financiera, el bien inmueble será asignado a título oneroso al organismo público o le será cedido conforme a las formas previstas en el derecho común.
El Conservatorio del Espacio Litoral y de las Riberas Lacustres sustituirá al Estado en la gestión de los bienes inmuebles que le hubieran sido asignados: firmará todos los contratos correspondientes a los mismos, especialmente los mencionados en el artículo L.322-9, percibirá en beneficio propio todos los productos y soportará las cargas que conlleven, cualesquiera que fueran. Estas disposiciones serán aplicables a los bienes inmuebles demaniales entregados al organismo a título de dotación.
Los bienes demaniales que le hubieran sido asignados o entregados en concepto de dotación solamente podrán ser desasignados o retirados en las condiciones previstas para las enajenaciones de bienes privados.
Artículo L322-7 Las adquisiciones y permutas de bienes inmuebles situados en las zonas definidas en el artículo L.322-1 y
realizadas por el Conservatorio del Espacio Litoral y de las Riberas Lacustres, estarán exentas del pago del derecho de timbre fijado según su tamaño, de los derechos registrales y de la tasa de publicidad registral.
Artículo L322-8 Las donaciones y legados de bienes inmuebles situados en las zonas definidas en el artículo L.322-1 estarán
exentos automáticamente por la Administración del pago del impuesto sobre transmisiones patrimoniales, siempre que se hubiesen realizado en beneficio del Conservatorio del Espacio Litoral y de las Riberas Lacustres.
Subsección 2 Gestión Artículos L322-9 a
L322-10-3
Artículo L322-9 (Ley nº 2002-276 de 27 de febrero de 2002 art. 161 Diario Oficial de 28 de febrero de 2002)
El patrimonio adscrito al Conservatorio del Espacio Litoral y de las Riberas Lacustres comprenderá los bienes inmuebles adquiridos así como los que le hubieran sido asignados, atribuidos, confiados o entregados por el Estado para su gestión. El patrimonio propio del Conservatorio estará formado por los terrenos cuya propiedad hubiera adquirido y que decida conservar para asegurar su misión definida en el artículo L.322-1. El patrimonio adscrito del Conservatorio del Litoral y de las Riberas Lacustre será de dominio público, exceptuando los terrenos adquiridos no clasificados como patrimonio propio. Dentro de los límites de la vocación y la fragilidad de cada espacio, este patrimonio estará abierto al público.
Los bienes inmuebles del patrimonio adscrito al Conservatorio del Espacio Litoral y de las Riberas Lacustres podrán ser administrados por las entidades locales o sus agrupaciones, los organismos públicos o las fundaciones y asociaciones especializadas autorizadas, quienes soportarán sus cargas y percibirán los productos correspondientes. Si así lo solicitasen, se concederá prioridad a las entidades locales en cuyo territorio están situados los bienes inmuebles. Los contratos que hubieran sido firmados a dichos efectos entre el Conservatorio y los administradores establecerán de forma expresa el uso que habrá de darse a los terrenos, siendo obligatorio que dicho uso contribuya a la consecución de los objetivos definidos en el artículo L.322-1.
El Conservatorio y el administrador podrán autorizar, mediante contrato, un uso temporal y específico de los bienes inmuebles, siempre que este uso sea compatible con la misión encomendada al Conservatorio, en el sentido del artículo L.322-1.
Cuando el uso de este dominio público esté asociado a una explotación agrícola, se concederá prioridad al explotador que estuviera presente en los lugares en el momento en que los bienes inmuebles referidos fueran incorporados al patrimonio adscrito al Conservatorio. En ausencia de un explotador presente en los lugares, el Conservatorio y, en su caso, el administrador, consultarán a los organismos profesionales para elegir al explotador. El contrato que se concluyera con éste fijará los derechos y las obligaciones del explotador, en aplicación de un contrato
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CÓDIGO DE MEDIO AMBIENTE marco aprobado por el Consejo de Administración, y establecerá los procedimientos para calcular los cánones.
Artículo L322-10 (Ley nº 2002-276 de 27 de febrero de 2002 art. 162 I Diario Oficial de 28 de febrero de 2002) (Ley nº 2005-157 de 23 de febrero de 2005 art. 134 Diario Oficial de 24 de febrero de 2005)
Los trabajos de acondicionamiento y las obras relativas a los bienes inmuebles adscritos al Conservatorio del Espacio Litoral y a las Riberas Lacustres, destinados a conservar, proteger y valorizar los bienes, podrán ser encargados a una entidad pública o privada de las mencionadas en el artículo L. 322-9, mediante un contrato de ocupación de duración no superior a treinta años. Las funciones que le sean atribuidas deberán estar en consonancia con la misión que lleva a cabo el Conservatorio. Este contrato podrá facultar al beneficiario para otorgar autorizaciones de ocupación no constitutivas de derechos reales, por una duración que no podrá ser superior a la del contrato.
El beneficiario estará autorizado a cobrar directamente en su beneficio las rentas de los bienes inmuebles. En este caso, tendrá que devolver periódicamente al Conservatorio el sobrante de las rentas que no hubiesen sido utilizados para la valorización y gestión del bien. El beneficiario será elegido discrecionalmente. Al término del contrato de ocupación, el administrador no podrá pedir indemnización alguna por las mejoras efectuadas en el bien inmueble.
El Conservatorio podrá asumir una parte del coste de las funciones citadas en el párrafo primero, siempre que dicha parte sea inferior a la del beneficiario del contrato de ocupación, con arreglo a las modalidades previstas en dicho contrato.
Artículo L322-10-1 (Ley nº 2002-276 de 27 de febrero de 2002 art. 162 II Diario Oficial de 28 de febrero de 2002) (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 8º Diario Oficial de 3 de julio de 2003)
Las personas físicas encargadas por los administradores citados en el artículo L.322-9 de ejercer las funciones de vigilancia del patrimonio administrado por el Conservatorio del Espacio Litoral y de las Riberas Lacustres, serán los guardas del litoral.
Para ejercer las funciones de policía definidas en el presente artículo, los guardas del litoral deberán ser nombrados por el representante del Estado en el departamento, a propuesta del Director del Conservatorio del Espacio Litoral y de las Riberas Lacustres, y tendrán que prestar juramento. En este caso, pertenecerán a la categoría de los agentes mencionados en el apartado 3º del artículo 15 del Código de Proceso Penal.
Los guardas del litoral y los agentes citados en el artículo L.332-20 del presente Código levantarán atestados para comprobar las infracciones a las ordenanzas municipales u órdenes prefectorales relativas al acceso a los terrenos implicados o a sus usos, así como a los reglamentos dictados en aplicación de los artículos L.2213-2, L.2213-4, L.2213-23, L.2215-1 y L.2215-3 del Código General de Entidades Territoriales, en lo referente al patrimonio administrado por el Conservatorio del Espacio Litoral y de las Riberas Lacustres.
Los guardas del litoral podrán asimismo levantar atestados para comprobar las infracciones a las disposiciones del presente título y a las del Código del Dominio Público del Estado administrado por el Conservatorio del Espacio Litoral y de las Riberas Lacustres.
Artículo L322-10-2 (Introducido por la Ley nº 2002-276 de 27 de febrero de 2002 art. 162 III Diario Oficial de 28 de febrero de 2002)
Quienes infrinjan las disposiciones mencionadas en el artículo anterior serán sancionados con la multa prevista para las faltas de 4a clase o faltas graves.
Artículo L322-10-3 (Introducido por la Ley nº 2002-276 de 27 de febrero de 2002 art. 162 IV Diario Oficial de 28 de febrero de 2002)
Los hechos recogidos en los atestados levantados por los guardas del litoral se presumirán ciertos, salvo prueba en contrario. Dichos atestados serán remitidos o enviados directamente al Fiscal de la República dentro de los cinco días naturales siguientes al de la comisión de la infracción.
Las infracciones podrán dar lugar al procedimiento de multa a tanto alzado, de conformidad con las disposiciones de los artículos 529 a 529-2 del Código de Proceso Penal.
Sección III Administración Artículos L322-11 a
L322-13-1
Subsección 1 Consejo de administración Artículos L322-11 a
L322-12
Artículo L322-11 El Conservatorio del Espacio Litoral y de las Riberas Lacustres será administrado por un Consejo de
Administración formado a partes iguales por representantes del Estado y personalidades cualificadas, por una parte, y por miembros del Parlamento y de las asambleas deliberantes de las entidades locales interesadas por la actividad del Conservatorio del Espacio Litoral y de las Riberas Lacustres, por la otra.
Artículo L322-12 El presidente del Consejo de Administración será elegido entre sus miembros.
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CÓDIGO DE MEDIO AMBIENTE Subsección 2 Consejos de Ribera Artículo L322-13
Artículo L322-13 (Ley nº 2002-276 de 27 de febrero de 2002 art. 163 Diario Oficial de 28 de febrero de 2002)
El Conservatorio del Espacio Litoral y de las Riberas Lacustres constará de Consejos de Ribera. Estos Consejos estarán formados por miembros elegidos en su seno por las asambleas deliberantes de las entidades locales.
Propondrán operaciones de adquisición y serán consultados sobre las actuaciones previstas por el Consejo de Administración del organismo público.
Los Alcaldes de los municipios en cuyo territorio se proponga o se prevea realizar las actuaciones deberán ser oídos, si así lo solicitaran.
La composición, el funcionamiento y los límites territoriales de estos Consejos serán determinados por decreto adoptado en Conseil d'Etat.
En particular, presentarán al Consejo de Administración cualquier propuesta relativa a las condiciones de mantenimiento y gestión del patrimonio del organismo público y a los acuerdos de colaboración entre el Conservatorio y las entidades territoriales, y sobre todo los departamentos y las regiones, a fin de definir, sobre una base plurianual, los objetivos y los medios empleados por las partes para la ejecución de la misión definida en el artículo L.322-1.
Subsección 3 Dirección y personal Artículo L322-13-1
Artículo L322-13-1 (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 133 III Diario Oficial de 24 de febrero de 2005)
En virtud del acuerdo de colaboración mencionado en el artículo L. 322-1 y al objeto de llevar a cabo las funciones que le han sido atribuidas, el Conservatorio del Espacio Litoral y de las Riberas Lacustres podrá disponer, además de su propio personal, de agentes de la función pública destinados en él.
Por aplicación del punto III del artículo L. 322-1, el Conservatorio podrá asimismo recurrir a la colaboración de agentes contratados por organismos públicos cuyo ámbito de intervención se sitúe en las zonas húmedas, pudiendo estos agentes ser puestos a disposición del Conservatorio en caso de necesidad.
Sección IV Disposiciones financieras Artículo L322-14
Artículo L322-14 Para el cumplimiento de su misión, el Conservatorio del Espacio Litoral y de las Riberas Lacustres dispondrá de
recursos que serán establecidos por decreto adoptado en Conseil d'Etat.
Título III Parques y Reservas Artículos L331-1 a
L333-4
Capítulo I Parques Nacionales Artículos L331-1 a
L332-22
Sección I Creación y disposiciones generales Artículos L331-1 a
L331-7
Artículo L331-1 El territorio de todo o parte de uno o varios municipios podrá ser clasificado como Parque Nacional por decreto
adoptado en Conseil d'Etat, cuando la conservación de la fauna, la flora, el suelo, el subsuelo, la atmósfera, las aguas y, en general, un medio natural presente un interés especial, y cuando sea de interés preservar este medio de cualquier efecto de degradación natural y evitarle cualquier intervención artificial susceptible de alterar su aspecto, composición y evolución. El decreto de clasificación podrá afectar el dominio público marítimo y las aguas territoriales e interiores francesas.
Artículo L331-2 El decreto por el cual se crea un Parque Nacional será adoptado tras consulta pública y demás consultas
establecidas por decreto adoptado en Conseil d'Etat.
Artículo L331-3 El decreto mencionado en el artículo L.331-2 podrá someter a un régimen particular y, en su caso, prohibir dentro
del Parque, el ejercicio de la caza y la pesca, las actividades industriales y comerciales, la ejecución de obras públicas y privadas, la extracción de materiales susceptibles o no de concesión, el aprovechamiento de las aguas, la circulación de los usuarios cualquiera que fuera el medio utilizado, así como cualquier acción susceptible de perjudicar el desarrollo natural de la fauna y la flora y, de manera general, de alterar el carácter del Parque Nacional.
Regulará, además, el ejercicio de las actividades agrícolas, de pastoreo o forestales.
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CÓDIGO DE MEDIO AMBIENTE Artículo L331-4
Se prohibirá la publicidad en los Parques Nacionales.
Artículo L331-5 En el territorio de un Parque Nacional, será obligatorio enterrar las redes eléctricas y telefónicas o utilizar, para las
líneas eléctricas de tensión inferior a 19.000 voltios, técnicas de redes trenzadas en la fachada de las viviendas, cuando se instalaran líneas eléctricas y redes telefónicas nuevas.
Cuando por necesidades técnicas imperativas o restricciones topográficas resultara imposible el soterramiento, o cuando se estimara que los impactos de este soterramiento fueran mayores que los de un tendido de línea aérea, excepcionalmente podrá derogarse dicha prohibición por Orden conjunta del Ministro competente en materia de Energía o Telecomunicaciones y el Ministro de Medio Ambiente.
Artículo L331-6 El decreto de clasificación podrá delimitar una zona periférica alrededor del Parque definida en el artículo L.331-15.
Artículo L331-7 Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente capítulo
Sección II Ordenación y gestión Artículos L331-8 a
L331-14
Artículo L331-8 La ordenación y la gestión de los Parques Nacionales, confiadas a un organismo que podrá ser una entidad pública
en el que estén representadas las entidades locales interesadas, tendrán lugar en las condiciones establecidas por el decreto previsto en el artículo L.331-7.
Artículo L331-9 El decreto de clasificación determinará las atribuciones y facultades del organismo mencionado en el artículo
L.331-8, sin perjuicio de las normas generales establecidas por el decreto previsto en el artículo L.331-7.
Artículo L331-10 Determinadas atribuciones de las entidades locales, especialmente en lo concerniente a la gestión del patrimonio
privado, las vías públicas y las funciones de policía, podrán ser transferidas al organismo de gestión por decreto adoptado en Conseil d'Etat, en la medida necesaria para la aplicación de las disposiciones de los artículos L.331-3, L.331-4 y L.331-16.
Artículo L331-11 Los recursos económicos del organismo encargado de un Parque Nacional estarán constituidos sobre todo por las
aportaciones del Estado y, eventualmente, de las entidades públicas, así como por toda clase de subvenciones públicas y privadas y, si procediera, por tasas.
Artículo L331-12 Dentro del Parque Nacional, las diversas administraciones públicas, en coordinación con el organismo encargado
del Parque, podrán proceder a las realizaciones y mejoras de índole social, económica y cultural que contribuyan a la protección de la naturaleza en el Parque.
Artículo L331-13 Para la aplicación del derecho de tanteo y retracto previsto en el artículo L.142-3 del Código de Urbanismo, el
organismo público encargado del Parque podrá beneficiarse del apoyo técnico de la Sociedad de Ordenación de Suelos y de Establecimiento Rural competente, en las condiciones previstas en el artículo L.141-5 del Código Rural.
El organismo público encargado del Parque sustituirá al Estado en la gestión de los bienes inmuebles que le hubieran sido asignados: Concluirá los contratos correspondientes a los mismos, percibirá en beneficio propio los productos y soportará las cargas que conlleven, de cualquier naturaleza. Estas disposiciones serán aplicables a los bienes inmuebles demaniales entregados al organismo a título de dotación.
Artículo L331-14 Los organismos que gestionan los Parques Nacionales se encargarán de la protección de espacios naturales
sensibles y de particular interés. Cooperarán con las regiones y las entidades territoriales para el cumplimiento de este cometido y para el desarrollo
económico, social y cultural de la zona geográfica, o del macizo correspondiente en el caso de los Parques Nacionales que están situados en los macizos montañosos.
Esta cooperación se traducirá especialmente en la participación en programas de investigación, formación, acogida, animación y asistencia técnica. En los Parques Nacionales situados en macizos montañosos, dicha contribución se efectuará mediante una representación en los Comités de Macizo previstos en la Ley nº 85-30 de 9 de enero de 1985, relativa al desarrollo y a la protección de la montaña.
Los organismos que gestionan los Parques Nacionales colaborarán, a solicitud de los mismos, en la elaboración de los planes de ocupación de los suelos, en los planes directores o sectoriales correspondientes a los municipios cuyo territorio, total o parcialmente, esté situado dentro del Parque o de su zona periférica.
Podrán adherirse a entidades administrativas mixtas competentes en la ordenación, desarrollo y protección de una
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CÓDIGO DE MEDIO AMBIENTE zona geográfica o de un determinado espacio natural y, en el caso de los Parques Nacionales situados en macizos montañosos, de uno o varios valles o del macizo local correspondiente.
Sección III Valorización de las zonas periféricas Artículo L331-15
Artículo L331-15 En la zona periférica delimitada en las condiciones establecidas en el artículo L.331-6 y con arreglo a un programa
definido en coordinación con el organismo de gestión previsto en el artículo L.331-8, las diversas administraciones públicas tomarán todas las medidas que permitan llevar a cabo un conjunto de realizaciones y mejoras de orden social, económico y cultural y que favorezcan una protección más eficaz de la naturaleza en el Parque.
En estas zonas periféricas, la publicidad quedará estrictamente limitada, en las condiciones establecidas por el decreto adoptado en Consejo de Estado previsto en el artículo L.331-7.
Sección IV Reservas integrales Artículo L331-16
Artículo L331-16 Dentro de un Parque Nacional, se podrán crear zonas denominadas "reservas integrales" con el fin de prestar
mayor protección a determinados elementos de la fauna y la flora, con propósitos científicos. El decreto que las regule podrá establecer obligaciones específicas. Las reservas integrales se crearán teniendo en cuenta la ocupación humana y sus características. Las disposiciones relativas a las reservas integrales se aplicarán sin perjuicio, si procede, de lo dispuesto en el
capítulo II del presente título.
Sección V Indemnizaciones Artículo L331-17
Artículo L331-17 Los litigios relativos a las indemnizaciones a favor de los interesados y a cargo del organismo encargado del
Parque Nacional o del Estado en las condiciones establecidas por decreto adoptado en Conseil d'Etat, serán resueltos en las mismas condiciones que en materia de expropiación por causa de utilidad pública.
Sección VII Disposiciones penales Artículos L331-18 a
L332-22
Subsección 1 Comprobación de las infracciones y acciones judiciales Artículos L331-18 a
L332-22
Artículo L331-18 Los agentes nombrados por la autoridad administrativa, tras haber prestado juramento ante el Tribunal de Grande
Instance en cuya circunscripción tengan su domicilio, comprobarán la comisión de: 1° Las infracciones especialmente definidas para la protección de los Parques Nacionales; 2° Las infracciones cometidas en estos Parques en materia de montes, caza y pesca; 3° Las infracciones cometidas en la zona periférica del Parque al que pertenecen, en materia de caza y pesca
fluvial.
Artículo L331-19 (Disposición nº 2004-178 de 20 de febrero de 2004 art. 3 Diario Oficial de 24 de febrero de 2004)
I. - Los agentes de los Parques Nacionales estarán habilitados para comprobar, en la zona marítima de los Parques y Reservas Naturales de cuya gestión se ocupan los organismos encargados de los mismos, las infracciones a las normas de protección de dicha zona.
II. - También estarán habilitados para investigar y comprobar, en dicha zona marítima, la comisión de: 1° Las infracciones a lo establecido en materia de policía de navegación definidas en el artículo 63 del Código
Disciplinario y Penal de la Marina Mercante, en lo que concierne a la policía de aguas y bahías, y en el artículo R. 1 del mismo Código;
2° Las infracciones definidas en los artículos L. 218-10 a L. 218-19 y en el artículo L. 218-73 del presente Código; 3° Las infracciones a lo establecido en materia de policía de balizamiento, definidas en los artículo L. 331-1, L.
331-2 y R. 331-1 del Código de los Puertos Marítimos; 4° Las infracciones definidas en los artículos L. 532-3, L. 532-4, L. 532-7 y L. 532-8 del Código del Patrimonio; 5° Las infracciones definidas en los artículos 2, 5 y 6 del Decreto de 9 de enero de 1852 sobre el ejercicio de la
pesca marítima. III. - En calidad de agentes encargados de ejercer las funciones de policía de pesca, gozarán de las prerrogativas
contempladas en el artículo 14 del Decreto de 9 de enero de 1852 antes citado para llevar a cabo los controles inherentes a su función.
IV. - Dichos agentes serán nombrados, para ello, por la autoridad administrativa y prestarán juramento ante el
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CÓDIGO DE MEDIO AMBIENTE Tribunal de Grande Instance en cuya circunscripción tengan su domicilio.
V. - Los atestados serán remitidos a las autoridades administrativas o judiciales, con arreglo a los procedimientos previstos para dichas infracciones.
NOTA: el párrafo 3° del artículo 7 de la Ley n° 89-874 ha sido derogado por el párrafo 14° de la Disposición n° 2004-178 de 20 de febrero de 2004 relativa a la parte legislativa del Código del Patrimonio, sin perjuicio de lo dispuesto en el párrafo 7° del artículo 8 del mismo. La derogación tendrá efecto a partir de la fecha de publicación de las disposiciones reglamentarias del Código del Patrimonio.
Artículo L331-20 Los agentes habilitados para comprobar las infracciones en materia forestal, de caza y de pesca, podrán
comprobar las infracciones especialmente definidas para la protección de los Parques Nacionales.
Artículo L331-21 Los hechos recogidos en los atestados levantados por los agentes mencionados en los artículos L.331-18 a
L.331-20 se presumirán ciertos, salvo prueba en contrario. Los atestados que se levanten en concepto de las infracciones definidas en los artículos L.331-18 y L.331-20,
serán remitidos o enviados directamente al Fiscal de la República.
Artículo L331-22 Los atestados levantados por los agentes mencionados en los artículos L.331-18 y L.331-20 por las infracciones
mencionadas en los puntos 1º y 2º del artículo L.331-18, serán remitidos bajo pena de nulidad al Fiscal de la República en un plazo no superior a cinco días, incluyéndose en este plazo el día del hecho comprobado por el atestado.
Artículo L331-23 Se remitirá copia de los atestados levantados en materia de pesca fluvial o marítima, según el caso, al jefe de
servicio de la administración encargada de la policía de pesca o al jefe del servicio de asuntos marítimos.
Artículo L331-24 Los agentes mencionados en los artículos L.331-18 a L.331-20 podrán proceder a la incautación del objeto de la
infracción a la reglamentación del Parque Nacional, así como de los instrumentos y vehículos que hubieran servido para la comisión de la infracción.
Artículo L331-25 Las infracciones a la reglamentación de los Parques Nacionales, mencionadas en el artículo 529 del Código de
Proceso Penal, podrán dar lugar al procedimiento de multa a tanto alzado.
Artículo L332-22 (Disposición nº 2004-178 de 20 de febrero de 2004 art. 3 Diario Oficial de 24 de febrero de 2004)
I. - Los agentes de las reservas naturales estarán habilitados para comprobar, en la zona marítima de estas reservas, las infracciones a las normas de protección de esta zona.
II. - También estarán habilitados para investigar y comprobar, en dicha zona marítima: 1° Las infracciones a lo establecido en materia de policía de navegación definidas en el artículo 63 del Código
Disciplinario y Penal de la Marina Mercante, en lo que concierne a la policía de aguas y bahías, y en el artículo R. 1 del mismo Código;
2° Las infracciones definidas en los artículos L. 218-10 a L. 218-19 y en el artículo L. 218-73 del presente Código; 3° Las infracciones a lo establecido en materia de policía de balizamiento, definidas en los artículo L. 331-1, L.
331-2 y R. 331-1 del Código de los Puertos Marítimos; 4° Las infracciones definidas en los artículos L. 532-3, L. 532-4, L. 532-7 y L. 532-8 del Código del Patrimonio; 5° Las infracciones definidas en los artículos 2, 5 y 6 del Decreto de 9 de enero de 1852 sobre el ejercicio de la
pesca marítima. III. - En calidad de agentes encargados de ejercer las funciones de policía de pesca, gozarán de las prerrogativas
contempladas en el artículo 14 del Decreto de 9 de enero de 1852 antes citado para llevar a cabo los controles inherentes a su función.
IV. - Dichos agentes serán nombrados, para ello, por la autoridad administrativa y prestarán juramento ante el Tribunal de Grande Instance en cuya circunscripción tengan su domicilio.
V. - Los hechos recogidos en los atestados realizados por estos agentes se presumirán ciertos, salvo prueba en contrario. Serán remitidos a las autoridades administrativas o judiciales, con arreglo a los procedimientos previstos para las infracciones.
NOTA: el párrafo 3° del artículo 7 de la Ley n° 89-874 ha sido derogado por el párrafo 14° de la Disposición n° 2004-178 de 20 de febrero de 2004 relativa a la parte legislativa del Código del Patrimonio, sin perjuicio de lo dispuesto en el párrafo 7° del artículo 8 del mismo. La derogación tendrá efecto a partir de la fecha de publicación de las disposiciones reglamentarias del Código del Patrimonio.
Capítulo II Reservas naturales Artículos L332-1 a
L332-27
Sección I
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CÓDIGO DE MEDIO AMBIENTE Reservas naturales clasificadas Artículos L332-1 a
L332-10
Subsección 1 Creación Artículos L332-1 a
L332-8
Artículo L332-1 I. - Se podrá clasificar como reserva natural parte del territorio de uno o varios municipios cuando la conservación
de la fauna, la flora, el suelo, las aguas, los yacimientos de minerales y fósiles y, en general, el medio natural, presente una especial importancia o fuera necesario preservarlos de cualquier intervención artificial susceptible de provocar su degradación. La clasificación podrá afectar al dominio público marítimo y a las aguas territoriales e interiores francesas.
II. - Para esta clasificación, podrá tenerse en cuenta: 1° La preservación de especies animales o vegetales y de hábitats en vías de extinción en todo o parte del territorio
nacional o que posean cualidades de particular interés; 2° La repoblación de especies animales o vegetales y de sus hábitats; 3° La conservación de los jardines botánicos y arboretos que constituyan reservas de especies vegetales en vías
de extinción, con un bajo número de ejemplares o de particular interés; 4° La preservación de biótopos y de formaciones geológicas, geomorfológicas o espeleológicas que posean un
notable interés; 5° La preservación o la creación de refugios a lo largo de las grandes vías migratorias de la fauna silvestre; 6° Los estudios científicos o técnicos indispensables para el desarrollo de los conocimientos humanos; 7° La preservación de los espacios naturales que presenten un particular interés para el estudio de la evolución de
la vida y de las primeras actividades humanas.
Artículo L332-2 (Ley nº 2002-92 de 22 de enero de 2002 art. 24 III Diario Oficial de 23 de enero de 2002) (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 II a Diario Oficial de 28 de febrero de 2002)
I. - La decisión de clasificación de una Reserva Natural Nacional será acordada por decreto y su fin será el de garantizar la conservación de elementos del medio natural de interés nacional o la aplicación de una reglamentación comunitaria o de una obligación derivada de un convenio internacional.
La decisión será tomada tras consulta con las entidades locales interesadas y, en las zonas de montaña, con los Comités de macizo.
A falta de consentimiento por parte del propietario, la clasificación será acordada por decreto adoptado en Conseil d'Etat.
II. - Por iniciativa propia o a solicitud de los propietarios interesados, el Consejo Regional podrá clasificar como Reserva Natural Regional las propiedades que presenten un interés para la fauna, la flora, el patrimonio geológico o paleontológico o, de manera general, para la protección de los medios naturales.
La decisión de clasificación será tomada tras dictamen del Consejo Científico Regional del Patrimonio Natural y consulta con todas las entidades locales interesadas así como, en las zonas de montaña, con los Comités de macizo.
El acuerdo establecerá el período de duración de la clasificación, las medidas de protección que serán aplicables en la reserva, así como las modalidades de su gestión y control de las disposiciones contenidas en el acta de clasificación.
Dicho acuerdo será tomado tras negociación con el propietario o los propietarios afectados sobre el perímetro de la reserva o sobre las medidas de protección aplicables. A falta de acuerdo, la decisión será tomada por decreto adoptado en Conseil d'Etat.
La modificación de una Reserva Natural Regional se producirá conforme al mismo procedimiento. Un decreto adoptado en Conseil d'Etat determinará las disposiciones aplicables en materia de plazo para presentar
los dictámenes previstos en el presente artículo, relativos a la declaración de utilidad pública del perímetro de la reserva, la revocación de la clasificación, la publicidad registral, así como la responsabilidad civil del propietario.
III. - En Córcega, la decisión de clasificación de las Reservas Naturales será adoptada por la Asamblea de Córcega, tras consulta con las entidades territoriales interesadas y autorización del representante del Estado. Éste podrá pedir a la entidad territorial de Córcega que proceda a la clasificación de una Reserva Natural, con el objeto de asegurar la aplicación de una reglamentación comunitaria o de una obligación derivada de un convenio internacionaL.Si no se admitiera dicha solicitud, el Estado procedería a esta clasificación en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Dicho acuerdo será tomado tras negociación con el o los propietarios afectados sobre el perímetro de la reserva o sobre las medidas de protección aplicables. A falta de acuerdo, la decisión será tomada por decreto adoptado en Conseil d'Etat.
Las modalidades de gestión de las reservas naturales y de control de las disposiciones aplicables serán establecidas por la Asamblea de Córcega, previo acuerdo del Estado cuando la decisión de clasificación fuera tomada por éste o a petición suya.
Artículo L332-3 (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 II b Diario Oficial de 28 de febrero de 2002)
I.- El acta de clasificación de una reserva natural podrá someter a un régimen particular y, en su caso, prohibir
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CÓDIGO DE MEDIO AMBIENTE dentro de la reserva cualquier acción susceptible de perjudicar el desarrollo natural de la fauna y la flora y, de manera más general, de alterar el carácter de dicha reserva, en particular el ejercicio de la caza y pesca, las actividades agrícolas, forestales y de pastoreo, industriales, mineras y comerciales, la ejecución de obras públicas o privadas, la extracción de materiales susceptibles o no de concesión, el aprovechamiento de las aguas, la circulación de los usuarios cualquiera que fuera el medio utilizado, la deambulación de animales domésticos y el sobrevuelo de la reserva.
II. - El acta de clasificación de una reserva natural regional o de una reserva natural de la entidad territorial de Córcega podrá someter a un régimen particular o, en su caso, prohibir: las actividades agrícolas, de pastoreo y forestales, la ejecución de obras, construcciones e instalaciones diversas, la circulación y el estacionamiento de las personas, los animales y los vehículos, el vertido o depósito de materiales, residuos y detritus, cualquiera que fuera su naturaleza, que pudieran atentar contra el medio natural, las acciones cuyo carácter pudiera alterar la integridad de las especies animales y vegetales silvestres de la reserva, así como el traslado de estas especies animales y vegetales fuera de la reserva.
III. - El acta de clasificación tendrá en cuenta el interés que posee la conservación de las actividades tradicionales ya existentes, en la medida en que sean compatibles con los intereses definidos en el artículo L.332-1.
Artículo L332-4 (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 II c 1 Diario Oficial de 28 de febrero de 2002)
El acta de clasificación será publicada por la autoridad administrativa competente, con arreglo a las formas y a la manera prescritas por las leyes y demás disposiciones relativas a la publicidad registraL.Esta publicación no dará lugar a ninguna percepción en beneficio del Estado.
El acta será comunicada a los Alcaldes para su incorporación en la revisión del catastro. Será notificada a los propietarios y a los titulares de derechos reales.
Artículo L332-5 Cuando la clasificación contenga disposiciones cuyo carácter modifique el estado o el uso anterior de los lugares
causando un perjuicio directo, material y real, dará derecho a una indemnización a favor de los propietarios, de los titulares de derechos reales o de sus derechohabientes.
En dicho caso, la solicitud de indemnización tendrá que presentarse en el plazo de seis meses computados a partir de la fecha de notificación de la decisión de clasificación.
A falta de acuerdo amistoso, la indemnización será fijada por el juez de expropiación.
Artículo L332-6 (Ley nº 2002-92 de 22 de enero de 2002 art. 24 IV Diario Oficial de 23 de enero de 2002) (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 II c 2, d Diario Oficial de 28 de febrero de 2002)
A partir del día en que la autoridad administrativa competente hubiera notificado al propietario interesado su intención de constituir una reserva natural, ya no se podrá efectuar modificación alguna del estado o aspecto de los lugares durante un plazo de quince meses, salvo autorización especial de la autoridad administrativa competente y sin perjuicio de la explotación de los predios rurales según las prácticas anteriores. Este plazo será renovable una vez por decisión del Presidente del Consejo Regional o por orden prefectoral, según los casos, siempre que las primeras consultas o la consulta pública hubieran empezado. Cuando la notificación en Córcega hubiera sido realizada por el Presidente del Consejo Ejecutivo, el plazo será renovable en las mismas condiciones por decisión del Consejo Ejecutivo.
Artículo L332-7 (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 II c 2 Diario Oficial de 28 de febrero de 2002)
La clasificación seguirá surtiendo sus efectos legales aun cuando dicho territorio clasificado fuera transferido a un tercero.
El que transfiriere, diere en arrendamiento o en concesión un territorio clasificado como reserva natural, tendrá que informar al adquiriente, arrendatario o concesionario de la existencia de la clasificación.
Cualquier enajenación de un bien inmueble situado dentro de una reserva natural, tendrá que ser notificada en el plazo de quince días a la autoridad administrativa competente por la persona que la hubiera autorizado.
Artículo L332-8 (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 II e Diario Oficial de 28 de febrero de 2002)
La gestión de las reservas naturales podrá ser confiada mediante contrato a organismos públicos, agrupaciones de interés público o a asociaciones regidas por la Ley de 1 de julio de 1901 relativa al contrato de asociación y cuyos estatutos tengan como objeto principal la protección del patrimonio natural, a fundaciones, a los propietarios de los terrenos clasificados, a entidades territoriales o a sus agrupaciones.
Subsección 2 Modificaciones del estado o del aspecto de una reserva natural Artículo L332-9
Artículo L332-9 (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 II g Diario Oficial de 28 de febrero de 2002)
Los territorios clasificados como reserva natural no podrán ser destruidos ni modificados en su estado o en su aspecto, salvo autorización especial del Consejo Regional para las reservas naturales regionales, o del representante del Estado para las reservas naturales nacionales. En Córcega, la autorización corresponderá a la Asamblea de
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CÓDIGO DE MEDIO AMBIENTE Córcega cuando fuera la entidad territorial la que hubiera adoptado la decisión de clasificación.
Un decreto adoptado en Conseil d'Etat determinará las condiciones de esta autorización, especialmente en lo referido a la consulta previa con los organismos competentes.
Subsección 3 Desclasificación Artículo L332-10
Artículo L332-10 (Ley nº 2002-92 de 22 de enero de 2002 art. 24 VI Diario Oficial de 23 de enero de 2002) (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 II h Diario Oficial de 28 de febrero de 2002)
La desclasificación total o parcial de un territorio clasificado como reserva natural será acordada previa consulta pública, por decreto adoptado en Conseil d'Etat cuando se tratase de una reserva natural nacional, o por acuerdo del Consejo Regional cuando se trate de una reserva natural regional.
Se le aplicarán las medidas previstas en el artículo L.332-4. La Asamblea de Córcega podrá, previa consulta pública, decidir la desclasificación total o parcial de un territorio
cuya clasificación como reserva natural hubiera acordado, con excepción de los terrenos clasificados como reservas naturales a petición del representante del Estado. A la decisión de desclasificación se le aplicarán las medidas previstas en el artículo L.332-4.
Sección II Reservas naturales voluntarias Artículo L332-11
Artículo L332-11 (Ley nº 2002-92 de 22 de enero de 2002 art. 24 VII Diario Oficial de 23 de enero de 2002) (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 II I Diario Oficial de 28 de febrero de 2002)
Las reservas naturales voluntarias autorizadas a la fecha de entrada en vigor de la Ley nº 2002-276 de 27 de febrero de 2002 relativa a la democracia de proximidad, serán reservas naturales regionales y, en Córcega, reservas naturales de la entidad territorial de Córcega. No obstante, durante un período de un año a partir de la misma fecha, los propietarios afectados podrán solicitar la revocación de la autorización de la que fueran beneficiarios.
Sección III Disposiciones comunes Artículos L332-13 a
L332-27
Subsección 1 Protección de las reservas naturales Artículos L332-13 a
L332-15
Artículo L332-13 (Ley nº 2002-92 de 22 de enero de 2002 art. 24 VIII Diario Oficial de 23 de enero de 2002) (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 II k Diario Oficial de 28 de febrero de 2002)
Nadie podrá adquirir por prescripción derechos que permitan modificar el carácter o aspecto de una reserva natural.
No se podrá constituir una servidumbre por contrato en una reserva natural salvo acuerdo con un representante del Estado o del Consejo Regional en el caso de que este último hubiera adoptado la decisión de clasificación. En Córcega, el acuerdo requerido será otorgado por la Asamblea de Córcega, en el caso de que ésta hubiera adoptado la decisión de clasificación.
Artículo L332-14 Se prohibirá la publicidad en las reservas naturales.
Artículo L332-15 En el territorio de una reserva natural, será obligatorio enterrar las redes eléctricas y telefónicas o utilizar, para las
líneas eléctricas de tensión inferior a 19.000 voltios, técnicas de redes trenzadas en la fachada de las viviendas, cuando se instalaran líneas eléctricas nuevas o redes telefónicas nuevas.
Cuando por necesidades técnicas imperativas o restricciones topográficas imposibiliten el enterramiento, o cuando se estime que los impactos de este enterramiento son mayores que los de un tendido de línea aérea, excepcionalmente se podrá dejar de aplicar esta prohibición por Orden conjunta del Ministro competente en materia de Energía o Telecomunicaciones y el Ministro de Medio Ambiente.
Subsección 2 Perímetro de protección Artículos L332-16 a
L332-18
Artículo L332-16 (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 II I Diario Oficial de 28 de febrero de 2002)
El Consejo Regional, para las reservas naturales regionales, o el representante del Estado, para las reservas naturales nacionales, podrá establecer perímetros de protección alrededor de estas reservas. En Córcega, la decisión
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CÓDIGO DE MEDIO AMBIENTE corresponderá a la Asamblea de Córcega cuando fuera la entidad territorial la que hubiera adoptado la decisión de clasificación.
Estos perímetros serán creados tras consulta pública, a propuesta o previo acuerdo de los Consejos municipales.
Artículo L332-17 Dentro de los perímetros de protección, determinadas disposiciones podrán someter a un régimen particular o
prohibir cualquier acción susceptible de alterar el carácter de la reserva natural o de atentar contra la misma. Las disposiciones se aplicarán a la totalidad o a parte de las acciones enumeradas en el artículo L.332-3.
Artículo L332-18 Lo dispuesto en los artículos L.332-7 y L.332-8 se aplicará a los perímetros de protección.
Subsección 3 Disposiciones diversas Artículos L332-19 a
L332-19-1
Artículo L332-19 Las reservas naturales creadas según lo dispuesto en el artículo 8 bis de la Ley de 2 de mayo de 1930 estarán
sujetas a las disposiciones del presente capítulo.
Artículo L332-19-1 (Ley nº 2002-92 de 22 de enero de 2002 art. 24 IX Diario Oficial de 23 de enero de 2002) (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 II m Diario Oficial de 28 de febrero de 2002)
En los artículos L.332-4, L.332-6 y L.332-7, los términos: "autoridad administrativa competente" designarán al Presidente del Consejo Ejecutivo, cuando la entidad territorial de Córcega fuera la que hubiera adoptado la decisión de clasificación.
Sección IV Disposiciones penales Artículos L332-20 a
L332-27
Subsección 1 Comprobación de las infracciones y acciones judiciales Artículos L332-20 a
L332-24
Artículo L332-20 (Ley nº 2003-239 de 18 de marzo de 2003 art. 91 I Diario Oficial de 19 de marzo de 2003)
Además de los funcionarios y agentes de la policía judicial enumerados en los artículos 16, 20 y 21 del Código de Proceso Penal, estarán habilitados para comprobar las infracciones a los artículos L.332-3, L.332-6, L.332-7, L.332-9, L.332-11, L.332-12, L.332-17 y L.332-18:
1° Los agentes de aduanas nombrados a estos efectos; 2° Los agentes nombrados a estos efectos por la autoridad administrativa, que hubieran prestado juramento ante el
Tribunal de Grande Instance en cuya circunscripción tengan su domicilio, y que también podrán ser nombrados para comprobar las infracciones cometidas en las reservas naturales en materia de caza y pesca;
3° Los agentes del Estado y de la Oficina Nacional Forestal nombrados para comprobar las infracciones en materia forestal, de caza, pesca, inspección sanitaria, protección de las especies animales y vegetales, en todas las circunscripciones cuya vigilancia estuviera a su cargo;
4° Los agentes jurados y destinados en los Parques Nacionales, en la Oficina Nacional de Caza y Fauna Silvestre y en el Consejo Superior de Pesca;
4° bis Los guardas rurales; 5° Cuando las medidas de protección se refieran al dominio público marítimo o a las aguas territoriales, los agentes
habilitados por el Decreto de 9 de enero de 1852 sobre el ejercicio de la pesca marítima para comprobar las infracciones a la reglamentación sobre el ejercicio de la pesca marítima, así como los funcionarios encargados de ejercer las funciones de policía del dominio público marítimo y de las aguas territoriales.
NOTA - Ley 2003-329 artículo 131: Los artículos 77, ... 86 a 89, 91 ... serán aplicables en Mayotte.
Artículo L332-21 Los hechos recogidos en los atestados levantados por los funcionarios y agentes señalados en el artículo L.332-20
se presumirán ciertos, salvo prueba en contrario. Serán remitidos o enviados directamente al Fiscal de la República. Esta remisión o envío tendrá lugar cinco días naturales a partir del día de comprobación de la infracción, bajo pena de nulidad.
Las normas de proceso penal contenidas en los artículos 17 a 21 bis del Decreto de 9 de enero de 1852, sobre el ejercicio de la pesca marítima, serán aplicables en caso de infracciones cometidas en el dominio público marítimo o en las aguas territoriales.
Artículo L332-22 I. - Los agentes de las reservas naturales estarán habilitados para comprobar, en la zona marítima de estas
reservas, las infracciones a las reglamentaciones de protección de esta zona.
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CÓDIGO DE MEDIO AMBIENTE II. - También estarán habilitados para investigar y comprobar, en esta zona marítima: 1° Las infracciones a lo establecido en materia de policía de navegación definidas en el artículo 63 del Código
Disciplinario y Penal de la Marina Mercante, en lo referido a la policía de aguas y bahías, y en el artículo R. 1 del mismo Código;
2° Las infracciones definidas en los artículos L.218-10 a L.218-19 y en el artículo L.218-73 del presente Código; 3° Las infracciones a lo establecido en materia de policía de balizamiento, definidas en los artículo L.331-1, L.331-2
y R. 331-1 del Código de los Puertos Marítimos; 4° Las infracciones definidas en los artículos 3, 4, 7 y 8 de la Ley n° 89-874 de 1 de diciembre de 1989, relativa a
los bienes culturales marítimos, y que modifica la Ley de 27 de septiembre de 1941, de regulación de las excavaciones arqueológicas;
5° Las infracciones definidas en los artículos 2, 5 y 6 del Decreto de 9 de enero de 1852 sobre el ejercicio de la pesca marítima;
III. - En calidad de agentes encargados de ejercer las funciones de policía de pesca, gozarán de las prerrogativas contempladas en el artículo 14 del Decreto de 9 de enero de 1852 antes citado para llevar a cabo los controles inherentes a su función.
IV. - Dichos agentes serán nombrados, para ello, por la autoridad administrativa y prestarán juramento ante el Tribunal de Grande Instance en cuya circunscripción tengan su domicilio.
V. - Los hechos recogidos en los atestados levantados por estos agentes se presumirán ciertos, salvo prueba en contrario. Serán remitidos a las autoridades administrativas o judiciales, con arreglo a los procedimientos previstos para dichas infracciones.
Artículo L332-23 Los funcionarios y agentes señalados en el artículo L.332-20 estarán habilitados, en el ejercicio de sus funciones,
para controlar las reservas naturales y sus perímetros de protección con el objeto de garantizar el cumplimiento de las normas a las que están sujetas y comprobar cualquier infracción que allí se cometa.
El que imposibilitare el cumplimento de las funciones de dichos agentes, en particular denegándoles la entrada en una reserva natural, será castigado con las penas previstas en el artículo L.332-25, sin perjuicio, en su caso, de las penas previstas en los artículos 433-6 y siguientes del Código Penal.
Artículo L332-24 Las infracciones a la reglamentación de las reservas naturales mencionadas en el artículo 529 del Código de
Proceso Penal, podrán dar lugar al procedimiento de multa a tanto alzado.
Subsección 2 Sanciones Artículos L332-25 a
L332-27
Artículo L332-25 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Serán castigadas con pena de seis meses de prisión y una multa de 9.000 euros las infracciones a las disposiciones de los artículos L.332-6, L.332-7, L.332-9, L.332-12, L.332-17 y L.332-18.
Artículo L332-26 Los agentes encargados de comprobar las infracciones a lo dispuesto en los artículos L.332-3 y L.332-25 podrán
proceder a la incautación del objeto de la infracción así como de los instrumentos y vehículos que hubieran servido para la comisión de la infracción.
Los gastos de transporte, conservación y custodia de los objetos incautados correrán a cargo del inculpado. La sentencia condenatoria podrá ordenar la confiscación del objeto de la infracción así como de los instrumentos y
vehículos que hubieran servido para la comisión de la infracción.
Artículo L332-27 (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 II n Diario Oficial de 28 de febrero de 2002)
En caso de infracción a las disposiciones de los artículos L.332-6, L.332-9, L.332-17 y L.332-18 o a las disposiciones del acta de clasificación, de conformidad con lo dispuesto en el artículo L.332-3 del presente Código, se aplicarán a los territorios de las reservas naturales las disposiciones y sanciones promulgadas en los artículos L.480-2, L.480-3, L.480-5 a L.480-9 del Código de Urbanismo y en el artículo L.341-20 del presente Código, sustituyendo al Ministro competente en materia de Urbanismo por el Ministro competente en materia de protección de la Naturaleza.
Para la aplicación del párrafo primero del artículo L.480-2 del Código de Urbanismo, el Ministerio Público sólo podrá actuar a petición del Alcalde, del funcionario competente o de una asociación de protección del medio ambiente autorizada en virtud del artículo L.141-1 del presente Código.
Para la aplicación del artículo L.480-5 del Código de Urbanismo, el Tribunal resolverá, o bien sobre el cumplimiento de las disposiciones formuladas respectivamente por el Ministro de Medio Ambiente, el Presidente del Consejo Regional o el Presidente del Consejo Ejecutivo en Córcega, según se trate de una reserva natural nacional, de una reserva natural regional o de una reserva natural clasificada por la Asamblea de Córcega, o bien sobre su reposición al estado anterior.
Capítulo III
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CÓDIGO DE MEDIO AMBIENTE Parques naturales regionales Artículos L333-1 a
L333-4
Artículo L333-1 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 9º Diario Oficial de 3 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 231 I Diario Oficial de 24 de febrero de 2005)
Los Parques Naturales Regionales contribuirán a la política de protección del medio ambiente, de ordenación del territorio, de desarrollo económico y social y de educación y formación pública. Constituirán un marco privilegiado de las acciones llevadas a cabo por las entidades públicas a favor de la preservación de los paisajes y del patrimonio natural y cultural.
El acta constitutiva del parque determinará, respecto de su territorio, las pautas de protección, valorización y desarrollo así como las medidas que permitan su aplicación. Incluirá un plan elaborado a partir de un inventario del patrimonio, indicando las diferentes zonas del parque y su finalidad, al que acompañará un documento que determine las pautas y los principios fundamentales de protección de las estructuras paisajísticas en el territorio del parque.
El proyecto de acta constitutiva será elaborado por la región, conjuntamente con las entidades territoriales interesadas y en coordinación con las partes interesadas. Será sometido a consulta pública, al término de la cual será aprobado por las entidades territoriales interesadas y adoptado por el decreto que otorgue la clasificación como parque natural regional, por un periodo máximo de diez años.
La revisión del acta constitutiva correrá a cargo del organismo de gestión del parque natural regional. Si se produjeran cambios en las circunstancias de hecho o de derecho que no permitiesen la revisión por parte de la región antes de la expiración del periodo de vigencia de la clasificación como parque natural regional, dicha declaración podrá ser prorrogada por decreto, por un periodo máximo de dos años. Dicho decreto será adoptado a petición de la región, previa propuesta del organismo de gestión, sin que sea necesario proceder a las consultas previas previstas para la clasificación inicial o su renovación.
El Estado y las entidades territoriales que se adhieran al acta constitutiva aplicarán las orientaciones y las medidas establecidas en ésta en el ejercicio de sus competencias en el territorio del parque. Garantizarán la coherencia de sus acciones y la de los medios utilizados. El Estado y las regiones que se adhieran al acta constitutiva podrán concluir un contrato con el organismo de gestión del parque, en aplicación del contrato de plan entre el Estado y las regiones. Los documentos de urbanismo tendrán que ser compatibles con las orientaciones y las medidas establecidas en el acta constitutiva.
Por decreto adoptado en Conseil d'Etat se determinarán las condiciones de aplicación del presente artículo.
Artículo L333-2 Los parques naturales regionales situados en macizos montañosos constituirán un instrumento ejemplar al servicio
de la protección del equilibrio biológico y la preservación de los espacios naturales y paisajes citados en el artículo 1 de la Ley nº 85-30 de 9 de enero de 1985, relativa a la montaña. Su representación en los Comités de macizo, previstos en el artículo 7 de la misma Ley, reflejará el carácter privilegiado de sus relaciones con las regiones y las entidades territoriales en el marco de una ordenación del territorio que respete la singularidad de las zonas de montaña.
Esta representación les permitirá colaborar en la elaboración de las disposiciones especiales citadas en el artículo L.145-7 del Código de Urbanismo, especialmente en lo concerniente a las condiciones de preservación de los espacios, paisajes y medios característicos del patrimonio natural y cultural de la montaña.
Artículo L333-3 La ordenación y la gestión de los parques naturales regionales creados a partir del 3 de febrero de 1995, serán
confiadas a una entidad administrativa mixta según lo dispuesto en los artículos L.5721-1 y siguientes del Código General de Entidades Territoriales.
Artículo L333-4 (Ley nº 2003-590 de 2 de julio de 2003 art. 97 IV Diario Oficial de 3 de julio de 2003)
Cuando el ámbito territorial de una comarca ("pays") incluya municipios situados dentro de un parque natural regional, se garantizará la compatibilidad de los documentos, la coherencia y la coordinación de las acciones llevadas a cabo en nombre y por cuenta de la comarca ("pays"), de conformidad con el tercer párrafo del punto IV del artículo 22 de la Ley nº 95-115 de 4 de febrero de 1995, de orientación para la ordenación y el desarrollo del territorio.
Título IV Espacios naturales Artículos L341-1 a
L342-1
Capítulo I Espacios naturales inscritos y clasificados Artículos L341-1 a
L341-22
Sección I Inventario y clasificación Artículos L341-1 a
L341-15
Artículo L341-1
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CÓDIGO DE MEDIO AMBIENTE (Ley nº 2002-92 de 22 de enero de 2002 art. 24 X Diario Oficial de 23 de enero de 2002) (Disposición nº 2004-637 de 1 de julio de 2004 art. 28 I Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2006)
En cada departamento, se establecerá un catálogo de los monumentos naturales y espacios naturales cuya conservación o preservación revista un interés especial desde el punto de vista artístico, histórico, científico, legendario o pintoresco.
La inclusión dentro de dicho catálogo será acordada por orden del Ministro competente en materia de espacios naturales y, en Córcega, por acuerdo de la Asamblea de Córcega previo dictamen del representante del Estado. Un decreto adoptado en Conseil d'Etat determinará el procedimiento a seguir para que esta inclusión sea notificada a los propietarios y debidamente publicada. La publicación sustituirá la notificación solamente en los casos en que ésta no se pueda realizar debido al número elevado de propietarios del mismo espacio o monumento natural, o debido a la imposibilidad para la administración de conocer la identidad o el domicilio del propietario.
Sin previa notificación a la administración con al menos cuatro meses de antelación, no se podrá realizar trabajo alguno en los terrenos catalogados como espacios naturales y situados dentro de los límites fijados por la orden, que no sean los de explotación corriente de los predios rurales y la conservación normal de las construcciones.
Nota: La fecha de entrada en vigor del artículo 28 de la Disposición 2004-637 ha sido modificada por la Disposición 2004-727.
Artículo L341-2 (Ley nº 2005-157 de 23 de febrero de 2005 art. 180 Diario Oficial de 24 de febrero de 2005) (Disposición nº 2004-637 de 1 de julio de 2004 art. 28 I Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2006) (Ley nº 2005-157 de 23 de febrero de 2005 art. 180 Diario Oficial de 24 de febrero de 2005)
Los monumentos y espacios naturales, estén o no incluidos en el catálogo elaborado por la Comisión Departamental, podrán ser clasificados en las condiciones y con arreglo a las normas establecidas por la presente sección.
Cuando se someta una solicitud de clasificación a la Comisión Superior de Espacios Naturales, Perspectivas y Paisajes, dicha solicitud será remitida a la Comisión Departamental para su instrucción y, en su caso, su propuesta de clasificación. En caso de urgencia, el Ministro competente en materia de espacios naturales fijará un plazo a la Comisión Departamental para que emita su dictamen. Transcurrido este plazo sin haberse pronunciado, el Ministro consultará a la Comisión Superior y dará a la solicitud el trámite que corresponda.
En las zonas de montaña, la decisión de clasificación se tomará previa consulta con el Comité de Macizo interesado.
Nota: La fecha de entrada en vigor del artículo 28 de la Disposición 2004-637 ha sido modificada por la Disposición 2004-727.
Artículo L341-3 Cuando un monumento natural o un espacio natural, perteneciente en su totalidad o en parte a personas diferentes
de las que se citan en los artículos L.341-4 y L.341-5, sea objeto de un proyecto de clasificación, se solicitará a los interesados que presenten sus alegaciones con arreglo a un procedimiento determinado por decreto adoptado en Conseil d'Etat.
Artículo L341-4 El monumento natural o espacio natural situado en dominio público o privado perteneciente al Estado, podrá ser
clasificado por orden del Ministro competente en materia de espacios naturales, en caso de existir acuerdo con el Ministro bajo cuya competencia se encuentre el monumento o espacio natural así como con el Ministro competente en materia de dominio público del Estado. De igual modo se procederá cada vez que se trate de clasificar un lago o un curso de agua susceptible de producir una potencia permanente de 50 kilovatios de energía eléctrica.
En el caso contrario, la clasificación será acordada por decreto adoptado en Conseil d'Etat.
Artículo L341-5 Cualquier monumento natural o espacio natural situado en dominio público o privado de un departamento o de un
municipio o perteneciente a un organismo público, podrá ser clasificado por Orden del Ministro competente en materia de espacios naturales siempre que la persona pública propietaria dé su consentimiento.
En el caso contrario, la clasificación será acordada por decreto adoptado en Conseil d'Etat, tras dictamen de la Comisión Superior de Espacios Naturales, Perspectivas y Paisajes.
Artículo L341-6 (Disposición nº 2004-637 de 1 de julio de 2004 art. 28 I Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2006)
Cualquier monumento natural o espacio natural perteneciente a otra persona que no sean las citadas en los artículos L. 341-4 y L. 341-5, será clasificado por orden del Ministro competente en materia de espacios naturales, siempre que el propietario dé su consentimiento. La orden determinará las condiciones de la clasificación.
A falta de consentimiento por parte del propietario, la clasificación será acordada por decreto adoptado en Conseil d'Etat, previo dictamen de la Comisión Superior. La clasificación podrá dar derecho a una indemnización a favor del propietario siempre que suponga una modificación del estado o del uso del lugar que cause un perjuicio directo, material y real.
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CÓDIGO DE MEDIO AMBIENTE La solicitud de indemnización tendrá que presentarse en el plazo de seis meses a contar desde la fecha del
requerimiento dirigido al propietario para que modifique el estado o el uso del lugar con arreglo a las disposiciones especiales recogidas en la orden de clasificación. A falta de acuerdo amistoso, la indemnización será fijada por el juez competente para la expropiación.
Si el Gobierno considerara que no se ha de tramitar la clasificación de oficio en las condiciones así establecidas, podrá revocar el decreto de clasificación en cualquier momento del procedimiento y como máximo en el plazo de tres meses a partir de la notificación de la resolución judicial.
La clasificación de un lago o de un curso de agua susceptible de producir una energía eléctrica permanente de 50 kilovatios como mínimo, sólo podrá acordarse previo dictamen de los Ministros competentes. Este dictamen tendrá que ser emitido en el plazo de tres meses, transcurrido el cual se podrá hacer caso omiso del mismo.
En caso de acuerdo con los Ministros competentes, la clasificación podrá ser acordada por orden del Ministro competente en materia de espacios naturales. En el caso contrario, será acordada por decreto adoptado en Conseil d'Etat.
Nota: La fecha de entrada en vigor del artículo 28 de la Disposición 2004-637 ha sido modificada por la Disposición 2004-727.
Artículo L341-7 A partir de la fecha en que la administración encargada de los espacios naturales notifique al propietario de un
monumento natural o de un espacio natural su intención de seguir el procedimiento de clasificación, ya no se podrá modificar el estado del lugar o su aspecto durante un plazo de doce meses, salvo autorización especial y sin perjuicio de la explotación corriente de los predios rurales y de la conservación normal de las construcciones.
Cuando no se conozca la identidad o el domicilio del propietario, la notificación podrá ser enviada al Alcalde, quien se encargará de publicarla y, en su caso, al ocupante del lugar.
Artículo L341-8 Cualquier Orden o Decreto acordando una clasificación será publicado por la Administración encargada de los
espacios naturales en el Registro de la Propiedad del lugar del bien inmueble clasificado. Esta publicación, que no dará lugar a ninguna percepción en beneficio del Tesoro, se hará con arreglo a las formas
y manera prescritas por las leyes y demás disposiciones relativas a la publicidad registral.
Artículo L341-9 La clasificación seguirá surtiendo sus efectos legales aun cuando el monumento natural o el espacio natural
clasificado fuera transferido a un tercero. El que transfiriere un monumento natural o un espacio natural clasificado estará obligado a informar al adquiriente
de la existencia de la clasificación. La enajenación de un monumento natural o de un espacio natural clasificado tendrá que ser notificada en el plazo
de quince días al Ministro competente en materia de espacios naturales por la persona que la hubiera autorizado.
Artículo L341-10 No se podrá destruir ni modificar el estado o aspecto de un monumento natural o un espacio natural clasificado
salvo autorización especial.
Artículo L341-11 En el territorio de un espacio natural clasificado en virtud del presente capítulo, será obligatorio enterrar las redes
eléctricas y telefónicas o utilizar, para las líneas eléctricas de tensión inferior a 19.000 voltios, técnicas de redes trenzadas en la fachada de las viviendas, cuando se instalaran líneas eléctricas nuevas y redes telefónicas nuevas.
Cuando por necesidades técnicas imperativas o restricciones topográficas resultara imposible el soterramiento, o cuando se estimara que los impactos de este soterramiento fueran mayores que los de un tendido de línea aérea, excepcionalmente podrá derogarse dicha prohibición por Orden conjunta del Ministro competente en materia de Energía o Telecomunicaciones y el Ministro de Medio Ambiente.
Artículo L341-12 A partir de la fecha en que la administración encargada de los espacios naturales notifique al propietario de un
monumento o espacio natural no clasificado su intención de seguir el procedimiento de expropiación, todos los efectos de la clasificación se aplicarán de pleno derecho a ese monumento o espacio naturaL.Dejarán de aplicarse si la declaración de utilidad pública no se hubiera producido en el plazo de doce meses a partir de dicha notificación. Cuando la utilidad pública hubiera sido declarada, el bien inmueble podrá ser clasificado sin más formalidades por Orden del Ministro competente en materia de espacios naturales.
Artículo L341-13 (Disposición nº 2004-637 de 1 de julio de 2004 art. 28 I Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2006)
La desclasificación total o parcial de un monumento o espacio protegido será acordada por decreto adoptado en Conseil d'Etat, previo dictamen de la Comisión Superior. La desclasificación será notificada a los interesados y publicada en el Registro de la Propiedad del lugar de los bienes, en las mismas condiciones establecidas para la clasificación.
El Decreto de desclasificación determinará, tras el visto bueno del Conseil d'Etat, si procede o no restituir la indemnización prevista en el artículo L. 341-6.
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CÓDIGO DE MEDIO AMBIENTE Nota: La fecha de entrada en vigor del artículo 28 de la Disposición 2004-637 ha sido modificada por la Disposición
2004-727.
Artículo L341-14 Ningún monumento o espacio natural clasificado o propuesto para la clasificación podrá ser objeto de un
procedimiento de consulta para expropiación por causa de utilidad pública hasta después de que el Ministro competente en materia de espacios naturales haya emitido sus observaciones.
Nadie podrá adquirir por prescripción derechos que permitan modificar el carácter o aspecto de un monumento natural o espacio natural.
No se podrá constituir por contrato ninguna servidumbre en un monumento natural o espacio natural sin la autorización del Ministro competente en materia de espacios naturales.
Artículo L341-15 La lista de los espacios y monumentos naturales clasificados deberá mantenerse actualizada. En el transcurso del
primer trimestre de cada año, se publicará en el Diario Oficial el catálogo de los monumentos naturales y espacios naturales clasificados o protegidos durante el año anterior.
Sección II Organismos Artículos L341-16 a
L341-18
Artículo L341-16 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 12º Diario Oficial de 3 de julio de 2003) (Disposición nº 2004-637 de 1 de julio de 2004 art. 28 I Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2006) (Ley nº 2005-157 de 23 de febrero de 2005 art. 190 V, art. 235 XII Diario Oficial de 24 de febrero de 2005)
Una Comisión Departamental competente en materia de naturaleza, paisajes y espacios naturales tendrá su sede en cada departamento.
Dicha comisión estará presidida por el representante del Estado en el departamento. Cuando actúe en los casos previstos en los artículos L. 111-1-4, L. 122-2, L. 145-3, L. 145-5, L. 145-11, L. 146-4, L. 146-6, L. 146-6-1, L. 146-7 y L. 156-2 del Código de Urbanismo, celebrará una sesión con cargos electos de las entidades territoriales y de entidades públicas de cooperación intermunicipal y con personas cualificadas en el ámbito de las ciencias de la naturaleza o de la protección de los espacios naturales y del marco de vida.
En Córcega, las atribuciones reservadas a la Comisión de Espacios Naturales, Perspectivas y Paisajes serán ejercidas por el Consejo de Espacios Naturales de Córcega contemplado en el artículo L. 4421-4 del Código General de Entidades Territoriales.
Nota: La fecha de entrada en vigor del artículo 28 de la Disposición 2004-637 ha sido modificada por la Disposición 2004-727.
Artículo L341-17 La Comisión Superior de Espacios Naturales, Perspectivas y Paisajes dependerá del Ministro competente en
materia de espacios naturales. Esta Comisión, presidida por el Ministro competente en materia de espacios naturales, estará formada por
representantes de los ministros interesados, diputados y senadores designados por cada una de las asambleas y personalidades cualificadas en materia de protección de los espacios naturales, la calidad de vida y las ciencias de la naturaleza designadas por el Ministro competente en materia de espacios naturales.
Artículo L341-18 Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente capítulo, en especial
la composición, el modo de designación y las condiciones de funcionamiento de las Comisiones contempladas en los artículos L.341-16 y L.341-17.
Sección III Disposiciones penales Artículos L341-19 a
L341-22
Artículo L341-19 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 10º Diario Oficial de 3 de julio de 2003) (Disposición nº 2004-178 de 20 de febrero de 2004 art. 6 III Diario Oficial de 24 de febrero de 2004) (Disposición nº 2005-1527 de 8 de diciembre de 2005 art. 34 I Diario Oficial de 9 de diciembre de 2005 con entrada en vigor el 1 de julio de 2007)
I. - Será sancionado con una multa de 9.000 euros el que: 1° Realizare obras en un monumento o espacio natural catalogado sin notificarlo a la administración en las
condiciones previstas en el artículo L. 341-1, párrafo 4; 2° Transfiriere un monumento o espacio natural clasificado sin informar al adquiriente de la existencia de la
clasificación o sin notificar esta transmisión a la administración, en las condiciones previstas en el artículo L. 341-9;
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CÓDIGO DE MEDIO AMBIENTE 3° Estableciere una servidumbre en un monumento o espacio natural clasificado sin la autorización de la
administración, en las condiciones previstas en el artículo L. 341-14; II. - Será castigado con las penas previstas en el artículo L. 480-4 del Código de Urbanismo el que: 1° Realizare modificaciones en un monumento o espacio natural en trámite de clasificación infringiendo lo
dispuesto en el artículo L. 341-7; 2° Destruyere o modificare en su estado o su aspecto un monumento o espacio natural clasificado sin la
autorización prevista en el artículo L. 341-10; 3° Incumpliere las disposiciones establecidas por un decreto de creación de una zona de protección que fuera
adoptado según lo dispuesto en el artículo 19 de la Ley de 2 de mayo de 1930, de reorganización de la protección de los monumentos naturales y de los lugares de carácter artístico, histórico, científico, legendario o pintoresco, y que siguiera surtiendo efecto según lo dispuesto en el artículo L. 642-6 del Código del Patrimonio.
III. - Lo dispuesto en los artículos L. 480-1, L. 480-2, L. 480-3 y L. 480-5 a L. 480-9 del Código de Urbanismo será de aplicación a las infracciones a lo dispuesto en el párrafo cuarto del artículo L. 341-1 del presente Código y a las disposiciones citadas en el punto II, siempre y cuando se cumplan las siguientes condiciones:
1° Las infracciones serán comprobadas por los funcionarios y agentes nombrados a estos efectos por el Ministro competente en materia de espacios naturales, y por los funcionarios y agentes jurados y nombrados para comprobar las infracciones a lo dispuesto en materia forestal, de caza y de pesca;
2° Para la aplicación del artículo L. 480-5 del Código de Urbanismo, el Tribunal se pronunciará sobre si se han cumplido las disposiciones establecidas por el Ministro competente en materia de espacios naturales o sobre si se debe proceder a su reposición al estado anterior;
3° Los representantes del Ministro competente en materia de espacios naturales tendrán el derecho de inspección previsto en el artículo L. 461-1. Será de aplicación el artículo 480-12 del mismo Código.
Artículo L341-20 Se castigará con las penas previstas en el artículo 322-2 del Código Penal, sin perjuicio de todos los daños e
intereses, la destrucción, mutilación o degradación intencionada de un monumento natural o de un espacio natural inscrito o clasificado.
Artículo L341-21 Los agentes encargados de comprobar las infracciones a lo dispuesto en los artículos L.341-19 y L.341-20 podrán
proceder a la incautación del objeto de la infracción así como de los instrumentos y vehículos que hubieran servido para la comisión de la infracción.
Los gastos de transporte, conservación y custodia de los objetos incautados correrán a cargo del inculpado. La sentencia condenatoria podrá ordenar la confiscación del objeto de la infracción así como de los instrumentos y
vehículos que hubieran servido para la comisión de la infracción.
Artículo L341-22 Las disposiciones del presente capítulo serán aplicables a los monumentos naturales y a los espacios naturales
legalmente clasificados antes del 2 de mayo de 1930, de conformidad con las disposiciones de la Ley de 21 de abril de 1906 de organización de la protección de los lugares y monumentos naturales de carácter artístico.
Capítulo II Otros espacios protegidos Artículo L342-1
Artículo L342-1 Se prohibirá la destrucción o alteración de los espacios naturales cuya lista esté establecida por orden del Ministro
competente en materia de protección de la naturaleza, cuando existiera un especial interés científico o necesidades de conservación del patrimonio mineralógico, en razón de su importancia para la comprensión de la historia de la tierra y del aprovechamiento de los recursos naturales por el hombre. La autoridad administrativa podrá regular o, en su caso, prohibir el acceso a dichos lugares y la extracción de cualquier objeto mineral.
Será de aplicación lo dispuesto en el capítulo V del título I del libro IV del presente Código.
Título V Paisajes Artículos L350-1 a
L350-2
Artículo L350-1 I. - El Estado podrá emitir directrices para la protección y revalorización de los paisajes en territorios notables por
su interés paisajístico y que serán definidos de común acuerdo con las entidades territoriales interesadas, y siempre que dichos territorios no sean objeto de directrices territoriales de ordenación adoptadas en aplicación del artículo L.111-1-1 del Código de Urbanismo.
II. - Dichas directrices determinarán las orientaciones y los principios fundamentales de protección de las estructuras paisajísticas aplicables a estos territorios. Las mismas serán elaboradas a iniciativa del Estado o de las entidades territoriales. Serán objeto de una concertación con todas las entidades territoriales interesadas, con las asociaciones de protección del medio ambiente autorizadas en virtud de lo dispuesto en el artículo L.141-1, y con las organizaciones profesionales interesadas. Serán aprobadas por decreto adoptado en Conseil d'Etat.
III. - Los planes directores, los planes sectoriales y los planes de ocupación de los suelos, o cualquier documento de urbanismo que los sustituya, deberán ser compatibles con las directrices de protección y revalorización de los
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CÓDIGO DE MEDIO AMBIENTE paisajes.
IV. - Sus disposiciones serán oponibles a las solicitudes de autorización de desbroce, de ocupación y de uso del suelo:
1° En ausencia de un plan de ocupación de los suelos oponible a terceros o de cualquier documento de urbanismo que lo sustituya;
2° Cuando un plan de ocupación de los suelos, o cualquier documento de urbanismo que lo sustituya, fuera incompatible con sus disposiciones.
V. - Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente artículo.
Artículo L350-2 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 11º Diario Oficial de 3 de julio de 2003) (Disposición nº 2004-178 de 20 de febrero de 2004 art. 6 II Diario Oficial de 24 de febrero de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 art. 78 XIV e 2° Diario Oficial de 10 de diciembre de 2004)
Las disposiciones relativas a las zonas de protección del patrimonio arquitectónico, urbanístico y paisajístico se encuentran enunciadas en los artículos L. 642-1 y L. 642-2 del Código del Patrimonio, que se transcriben a continuación:
"Art. L. 642-1. - A propuesta o tras acuerdo del Consejo municipal de los municipios interesados, se podrán crear zonas de protección del patrimonio arquitectónico, urbanístico y paisajístico alrededor de los monumentos históricos y en los barrios, lugares y espacios que se han de proteger o revalorizar por motivos de orden estético, histórico o cultural.
"Art. L. 642-2 - En el interior de estas zonas o partes de zonas, se dictarán disposiciones especiales en materia de arquitectura y paisaje para la realización de las obras mencionadas en el artículo L. 642-3.
"La zona de protección será creada por orden de la autoridad administrativa, tras consulta pública, dictamen de la Comisión Regional del Patrimonio y de los Espacios Naturales establecida por el artículo L. 612-1 y acuerdo del Consejo municipal del municipio interesado.
"El Ministro competente en la materia podrá avocar cualquier proyecto de zona de protección. "Las disposiciones relativas a la zona de protección se adjuntarán al plan local de urbanismo, con arreglo a las
condiciones previstas en el artículo L. 126-1 del Código de Urbanismo."
Título VI Acceso a la naturaleza Artículos L361-1 a
L364-1
Capítulo I Itinerarios de senderismo Artículos L361-1 a
L361-2
Artículo L361-1 (Ley nº 2005-157 de 23 de febrero de 2005 art. 197 Diario Oficial de 24 de febrero de 2005)
En cada departamento se establecerá, previa consulta con los municipios interesados, un plan departamental de itinerarios de paseo y senderismo.
Los itinerarios incluidos en este plan podrán pasar por vías públicas ya existentes, por caminos de dominio privado del departamento, así como por servidumbres destinadas a facilitar el paso de los usuarios en las propiedades ribereñas del dominio público marítimo, según lo dispuesto en el artículo L. 160-6 del Código de Urbanismo. Asimismo, podrán pasar por caminos rurales previo acuerdo de los municipios interesados, y por caminos o senderos pertenecientes al Estado, a otras personas públicas o a personas privadas previo acuerdo de los propietarios interesados. Estos acuerdos podrán determinar los gastos de conservación y señalización que correrán a cargo del departamento.
Cualquier transmisión de un camino rural susceptible de interrumpir la continuidad de un itinerario incluido en el plan departamental de itinerarios de paseo y senderismo tendrá que conllevar, bajo pena de nulidad, la conservación o el restablecimiento de esta continuidad por medio de un itinerario alternativo. Toda actuación pública de ordenación urbanística tendrá que respetar asimismo esta conservación o esta continuidad.
La circulación de los peatones por las vías y caminos incluidos en el plan departamental de itinerarios de paseo y senderismo, o por caminos privados identificados como itinerarios de paseo y senderismo previo acuerdo firmado entre los propietarios y los municipios y las federaciones de senderismo autorizadas, se efectuará libremente respetando las leyes y reglamentos de policía y los derechos de los vecinos.
Los alcaldes, en virtud de las competencias policiales que les son propias, podrán regular las condiciones de utilización de dichos itinerarios.
Los propietarios de predios rurales y forestales no serán responsables civilmente de los daños causados o sufridos como consecuencia de la circulación de peatones o de la practica de actividades recreativas, salvo que fueran declarados responsables de actos constitutivos de delito.
Por decreto adoptado en Conseil d'Etat se determinarán las condiciones de aplicación del presente artículo.
Artículo L361-2 Con arreglo a las mismas condiciones dispuestas en el artículo L.361-1, el departamento establecerá un plan
departamental de itinerarios de senderismo abiertos a la circulación motorizada, cuya creación y conservación estarán
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CÓDIGO DE MEDIO AMBIENTE a su cargo.
Los itinerarios inscritos en este plan tendrán que pasar por las vías pertenecientes a la red de comunicaciones del Estado, de los departamentos y de municipios, y por los caminos rurales y las vías privadas abiertas al tráfico público de vehículos a motor, exceptuando aquéllos que hubieran sido objeto de una prohibición de circular en aplicación de los artículos L.2213-4 y L.2215-3 del Código General de Entidades Territoriales.
Capítulo II Circulación motorizada Artículos L362-1 a
L362-8
Artículo L362-1 A fin de asegurar la protección de los espacios naturales, se prohibirá la circulación de vehículos a motor fuera de
las vías pertenecientes a la red de comunicaciones del Estado, de los departamentos y de los municipios, de los caminos rurales y de las vías privadas abiertas a la circulación motorizada.
La Carta constitutiva de cada Parque Natural Regional incluirá un artículo estableciendo las normas de circulación de los vehículos a motor por las vías y caminos de cada municipio asociado del parque.
Artículo L362-2 La prohibición contemplada en el artículo L.362-1 no se aplicará a los vehículos utilizados para cumplir una misión
de servicio público. Sin perjuicio de lo dispuesto en los artículos L.2213-4 y L.2215-3 del Código General de Entidades Territoriales, la
prohibición no se aplicará a los vehículos utilizados para fines profesionales de investigación, explotación o conservación de los espacios naturales, y no será oponible a los propietarios o a sus derechohabientes que circulen o dejen circular vehículos para fines privados por terrenos pertenecientes a dichos propietarios.
Artículo L362-3 (Disposición nº 2005-1527 de 8 de diciembre de 2005 art. 34 II Diario Oficial de 9 de diciembre de 2005 con entrada en vigor el 1 de julio de 2007)
La habilitación de terrenos para la práctica de deportes motorizados estará sujeta a la autorización prevista en el artículo L. 421-2 del Código de Urbanismo.
Las pruebas y competiciones de deportes motorizados serán autorizadas por el Prefecto en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Se prohibirá el uso para fines recreativos de vehículos motorizados diseñados para circular por la nieve, salvo en los terrenos habilitados en las condiciones establecidas en el párrafo primero.
Artículo L362-4 Se prohibirá cualquier forma de publicidad directa o indirecta que muestre un vehículo en situación de infracción a
lo dispuesto en el presente capítulo.
Artículo L362-5 Además de los funcionarios y agentes de la policía judicial, estarán habilitados para comprobar las infracciones a lo
dispuesto en el párrafo primero del artículo L.362-1, en el párrafo último del artículo L.362-3 y a lo dispuesto en aplicación de los artículos L.2213-4 y L.2215-3 del Código General de Entidades Territoriales:
a) Los agentes mencionados en el artículo 22 del Código de Proceso Penal; b) Los funcionarios y agentes jurados y destinados a la protección de la naturaleza por el Ministro de Medio
Ambiente; c) Los agentes jurados y destinados en la Oficina Nacional Forestal, a la Oficina Nacional de Caza y Fauna
Silvestre, en el Consejo Superior de Pesca y en los Parques Nacionales.
Artículo L362-6 Los hechos recogidos en los atestados levantados por los funcionarios y agentes señalados en el artículo L.362-5
se presumirán ciertos, salvo prueba en contrario. Serán remitidos o enviados por carta certificada al Fiscal de la República. Esta remisión o envío tendrá lugar como máximo cinco días naturales a partir del día de comprobación de la infracción, bajo pena de nulidad.
Artículo L362-7 Las disposiciones contenidas en los artículos L.25 a L.26 del Código de la Circulación se aplicarán a los vehículos
que circulen infringiendo lo dispuesto en el presente capítulo y lo dispuesto en las órdenes dictadas para su aplicación, en las condiciones determinadas por decreto adoptado en Conseil d'Etat.
Los agentes mencionados en el artículo L.362-5 estarán habilitados para aplicar las disposiciones del artículo L.25-1 del Código de la Circulación.
Artículo L362-8 El Tribunal que conozca de las acciones judiciales por una de las infracciones previstas en aplicación del presente
capítulo y de las órdenes dictadas para su aplicación, podrá ordenar la paralización del vehículo por un período que no podrá exceder de seis meses y, en caso de reincidencia, por un periodo que no podrá exceder de un año.
Capítulo III Otros modos de acceso Artículo L363-1
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CÓDIGO DE MEDIO AMBIENTE Artículo L363-1
Se prohibirá el desembarque de pasajeros para fines recreativos en las zonas de montaña, excepto en los aeródromos cuya lista será establecida por la autoridad administrativa.
Capítulo IV Espacios, lugares e itinerarios relativos a las actividades deportivas en la naturaleza Artículo L364-1
Artículo L364-1 De conformidad con lo establecido en el artículo 19 II de la Ley nº 84-610 de 16 de julio de 1984 modificada,
relativa a la organización y la promoción de las actividades físicas y deportivas, que se transcribe parcialmente a continuación:
"El Comité Nacional Olímpico y Deportivo Francés sin perjuicio del cumplimiento de la reglamentación propia de cada espacio natural, concluirá con los organismos gestores de espacios naturales contratos cuyo objeto sea establecer las condiciones y modalidades de acceso a estos espacios naturales para la práctica de deportes en plena naturaleza que sean compatibles con los planes de los servicios colectivos de los espacios naturales y rurales por una parte, y de deportes, por otra parte."
LIBRO IV Fauna y flora Artículos L411-1 a
L430-1 Título I Protección de la fauna y de la flora Artículos L411-1 a
L415-5
Capítulo I Preservación y vigilancia del patrimonio biológico Artículos L411-1 a
L411-7
Sección I Preservación del patrimonio biológico Artículos L411-1 a
L411-6
Artículo L411-1 I. - Cuando un especial interés científico o las necesidades de la preservación del patrimonio biológico justifiquen la
conservación de especies animales no domésticas o vegetales no cultivadas, se prohibirá: 1° La destrucción o sustracción de los huevos o de los nidos, la mutilación, la destrucción, la captura o la
sustracción, la perturbación intencionada, la naturalización de animales de estas especies y, ya estén vivos o muertos, su transporte, su venta ambulante, su utilización, su posesión, su oferta, su venta o su compra;
2° La destrucción, el corte, la mutilación, el arranque, la recolección o la sustracción de vegetales de estas especies, de sus fructificaciones o de cualquier otra forma que revistan estas especies durante su ciclo biológico, su transporte, su venta ambulante, su utilización, su oferta, su venta o su compra, así como la posesión de especímenes extraídos del medio natural;
3° La destrucción, la alteración o la degradación del medio natural propio de estas especies animales o vegetales; 4° La destrucción de los espacios naturales donde hay fósiles que permiten estudiar la historia de la biosfera así
como las primeras actividades humanas y la destrucción o sustracción de los fósiles existentes en estos espacios naturales.
II. - Las prohibiciones de posesión establecidas en aplicación del apartado 1º o del 2º del punto I no afectarán a los especímenes legalmente poseídos en la fecha de entrada en vigor de la prohibición relativa a la especie a la que pertenecen.
Artículo L411-2 (Ley nº 2005-157 de 23 de febrero de 2005 art. 129 I Diario Oficial de 24 de febrero de 2005) (Ley nº 2006-11 de 5 de enero de 2006 art. 86 Diario Oficial de 6 de enero de 2006)
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones en las que se determinen: 1° La lista limitativa de las especies animales no domésticas o vegetales no cultivadas que estén protegidas; 2° El período de duración de las prohibiciones permanentes o temporales adoptadas para permitir las
repoblaciones naturales de dichas especies o la rehabilitación de sus hábitats, así como la protección de las especies animales durante los períodos o en las circunstancias en las que sean particularmente vulnerables;
3° La parte del territorio nacional, incluidos el dominio público marítimo y las aguas territoriales, en la que se aplicarán dichas prohibiciones;
4° La concesión de una excepción a las prohibiciones mencionadas en los apartados 1°, 2° y 3° del artículo L. 411-1, siempre que no exista otra solución satisfactoria y que dicha excepción sea compatible con el mantenimiento del estado de conservación favorable de las poblaciones de la especie de que se trate en un área de distribución natural, cuando el fin de ello sea:
a) Proteger la fauna y flora silvestres y conservar los hábitats naturales; b) Evitar daños graves, en especial a los cultivos, al ganado, a los bosques, a los caladeros, a las aguas así como
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CÓDIGO DE MEDIO AMBIENTE a otras formas de propiedad;
c) En beneficio de la salud y seguridad públicas o por razones imperativas de interés público de primer orden, incluidas las de carácter socioeconómico y consecuencias beneficiosas de importancia primordial para el medio ambiente;
d) Para favorecer la investigación y educación, la repoblación, la reintroducción de dichas especies y para las operaciones de reproducción necesarias a dichos fines, incluida la propagación artificial de plantas;
e) Para permitir, en condiciones de riguroso control, con criterio selectivo y de forma limitada, la toma o posesión de un número limitado y especificado de determinados especimenes de las especies.
5° La regulación de la búsqueda, persecución y aproximación con el objeto de tomar imágenes o captar sonidos y, especialmente, la caza fotográfica de animales de cualquier especie y las zonas en las que se aplicará esta reglamentación, así como la regulación de la caza fotográfica de especies protegidas fuera de estas zonas;
6° Las normas que tendrán que cumplir los establecimientos autorizados para la posesión o cría fuera de su medio natural de especimenes de especies mencionadas en el apartado 1º o en el apartado 2º del artículo L. 411-1 con el fin de conservar y reproducir las mismas;
7° El listado de los espacios protegidos mencionados en el apartado 4º del punto I del artículo L. 411-1, las medidas de conservación apropiadas para evitar su degradación y la concesión de las autorizaciones especiales de extracción de fósiles para fines científicos o docentes.
El listado de especies animales no domésticas previsto en el apartado 1° se actualizará cada dos años.
Artículo L411-3 (Ley nº 2005-157 de 23 de febrero de 2005 art. 128 II, art. 129 II Diario Oficial de 24 de febrero de 2005)
I.- A fin de no perjudicar ni los medios naturales, ni los usos relacionados con los mismos, ni la fauna y flora silvestres, se prohibirá la introducción voluntaria en el medio natural, por negligencia o por imprudencia:
1° De cualquier espécimen de una especie animal no autóctona del territorio de introducción y no doméstica, cuyo listado será establecido por orden conjunta del Ministro competente en materia de protección de la naturaleza y bien del Ministro de Agricultura, bien, en el caso de especies marinas, del Ministro competente en materia de pesca marina;
2° De cualquier espécimen de una especie vegetal no autóctona del territorio de introducción y no doméstica, cuyo listado será establecido por orden conjunta del Ministro competente en materia de protección de la naturaleza y bien del Ministro de Agricultura, bien, en el caso de especies marinas, del Ministro competente en materia de pesca marina;
3° De cualquier espécimen de una de las especies animales o vegetales cuyo listado será establecido por la autoridad administrativa.
II. - No obstante, la autoridad administrativa podrá autorizar, previo estudio de impacto, la introducción en el medio natural de determinados especimenes de tales especies para fines agrícolas, piscícolas o forestales, o por motivos de interés general tras la evaluación de las consecuencias de dicha introducción.
III. - Tan pronto se compruebe la presencia en el medio natural de una de las especies citadas en el punto I, la autoridad administrativa podrá proceder u ordenar que se proceda a la captura, extracción, custodia o destrucción de los especimenes de la especie introducida. Lo dispuesto en el punto II del artículo L. 411-5 se aplicará igualmente:
IV. - Cuando una persona fuera condenada por infracción a lo dispuesto en el presente artículo, el Tribunal podrá ordenar que corran por su cuenta los gastos provocados por la captura, las extracciones, la custodia o la destrucción que hubieran sido necesarias.
IV bis. - Cuando las necesidades de preservación del patrimonio biológico, de los medios naturales y de los usos relacionados con los mismos justifiquen evitar su difusión, se prohibirá el transporte, la venta ambulante, la utilización, la oferta, la venta o la compra de especies animales o vegetales cuyo listado sea establecido por órdenes conjuntas del Ministro competente en materia de protección de la naturaleza y bien del Ministro de Agricultura, bien, en el caso de especies marinas, del Ministro competente en materia de pesca marina;
V. - Por decreto adoptado en Conseil d'Etat se precisarán las condiciones de aplicación del presente artículo.
Artículo L411-4 En el caso de especies que fueran de interés para la producción agrícola y forestal, las medidas de prohibición
mencionadas en el artículo L.411-3 serán tomadas conjuntamente por el Ministro de Agricultura, el Ministro competente en materia Forestal y el Ministro de Medio Ambiente.
Artículo L411-5 (Ley nº 2002-92 de 22 de enero de 2002 art. 24 XI Diario Oficial de 23 de enero de 2002) (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 III Diario Oficial de 28 de febrero de 2002)
I. - Se realizará un Inventario del Patrimonio Natural de todo el territorio nacional terrestre, fluvial y marino. Se entiende por Inventario del Patrimonio Nacional, el inventario de las riquezas ecológicas, faunísticas, florísticas, geológicas, mineralógicas y paleontológicas.
El Estado será responsable de su realización, promoción y valoración. Las regiones podrán colaborar en la elaboración de este inventario dentro del ámbito de sus competencias. Además, las entidades territoriales podrán contribuir al conocimiento del Patrimonio Natural mediante la elaboración de inventarios locales.
Se informará de estas actuaciones al Prefecto regional, a los Prefectos departamentales y a las demás entidades territoriales interesadas.
Estos inventarios serán elaborados bajo la responsabilidad científica del Museo Nacional de Historia Natural. Cuando se proceda a la elaboración de un plan, un programa o un proyecto, el Prefecto comunicará al municipio o
al organismo público de cooperación intermunicipal competente todas las informaciones contenidas en los inventarios
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CÓDIGO DE MEDIO AMBIENTE que fueran útiles para esta elaboración.
II. - Lo dispuesto en la Ley de 29 de diciembre de 1892, relativa a los daños causados a la propiedad privada por la ejecución de obras públicas, será aplicable a la ejecución de las actuaciones necesarias para llevar a cabo la elaboración de estos inventarios. Lo dispuesto en esta Ley será asimismo aplicable al conocimiento del suelo, de la vegetación y de toda información de tipo ecológico sobre los territorios recogidos en los inventarios.
III. - Se creará en cada región un Consejo Científico Regional del Patrimonio NaturaL.Este Consejo estará formado por especialistas designados intuitu personae por su competencia científica, particularmente en las universidades, organismos de investigación, sociedades eruditas y museos regionales. Abarcará todas las disciplinas de las ciencias de la vida y de la tierra aplicadas a los medios terrestres, fluviales y marinos.
Sus miembros serán nombrados por Orden del Prefecto de la región, previo dictamen del Presidente del Consejo Regional.
El presidente será elegido de entre sus miembros. El Prefecto de la región o el presidente del Consejo Regional le podrán someter cualquier asunto relativo al
inventario y a la conservación del Patrimonio Natural. Un decreto adoptado en Conseil d'Etat definirá su composición, sus ámbitos de intervención y precisará las
condiciones de su funcionamiento.
Artículo L411-6 El Gobierno presentará cada tres años un informe sobre las acciones emprendidas para aplicar la Directiva
79/409/CEE del Consejo de 2 de abril de 1979, relativa a la conservación de las aves silvestres, y las excepciones acordadas en base al artículo 9 de dicha Directiva.
Sección II Vigilancia biológica del territorio Artículo L411-7
Artículo L411-7 Las disposiciones relativas a la vigilancia biológica del territorio se encuentran enunciadas en el Código Rural (libro
II, título V, capítulo I).
Capítulo II Actividades sujetas a autorización Artículo L412-1
Artículo L412-1 Serán objeto de una autorización concedida en las condiciones y según las modalidades determinadas por decreto
adoptado en Conseil d'Etat la producción, la posesión, la cesión a título gratuito u oneroso, la utilización, el transporte, la introducción cualquiera que fuera su origen, la importación bajo cualquier régimen aduanero, la exportación y la reexportación de animales pertenecientes a especies no domésticas o de sus partes o productos derivados así como de los vegetales pertenecientes a especies no cultivadas y sus semillas o partes de plantas, cuya lista será establecida por órdenes conjuntas del Ministro de Medio Ambiente y, si fuere necesario, del o de los ministros competentes, si así lo solicitaran.
Capítulo III Establecimientos que poseen animales pertenecientes a especies no domésticas Artículos L413-1 a
L413-5
Artículo L413-1 Lo dispuesto en el presente capítulo no se aplicará a los productos de la pesca marítima y del marisqueo
destinados al consumo, ni a los establecimientos de pesca ni a los organismos encargados de su control.
Artículo L413-2 Los responsables de establecimientos de cría, venta, alquiler y custodia de animales pertenecientes a especies no
domésticas, así como los responsables de establecimientos destinados a la exhibición al público de especímenes vivos de la fauna local o extranjera, tendrán que ser titulares de un certificado de capacitación para la posesión de estos animales.
Lo dispuesto en el presente artículo se aplicará asimismo a los establecimientos existentes a fecha de 14 de julio de 1976, en los plazos y en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L413-3 Sin perjuicio de las disposiciones en vigor relativas a las instalaciones clasificadas para la protección del medio
ambiente, la apertura de establecimientos de cría, venta, alquiler, custodia de animales pertenecientes a especies no domésticas, así como la apertura de establecimientos destinados a la exhibición al público de especímenes vivos de la fauna local o extranjera, tendrán que contar con una autorización concedida en las condiciones y según las modalidades establecidas por decreto adoptado en Conseil d'Etat.
Lo dispuesto en el presente artículo se aplicará asimismo a los establecimientos existentes a fecha de 14 de julio de 1976, en los plazos y en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L413-4 (Ley nº 2005-157 de 23 de febrero de 2005 art. 167 I Diario Oficial de 24 de febrero de 2005)
I. - Estarán sujetos al control de la autoridad administrativa siempre que posean animales pertenecientes a
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CÓDIGO DE MEDIO AMBIENTE especies no domésticas:
1° Los establecimientos definidos en el artículo L. 413-3; 2° Los establecimientos científicos; 3° Los centros de enseñanza; 4° Los centros e institutos especializados en la investigación biomédica, el control biológico y las producciones
biológicas; 5° Los establecimientos profesionales de caza de carácter comercial citados en el artículo L. 424-3. II. - Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente artículo.
Artículo L413-5 (Ley nº 2005-157 de 23 de febrero de 2005 art. 158 I Diario Oficial de 24 de febrero de 2005)
Independientemente de las acciones penales que se pudieran ejercitar en aplicación del presente título, el Ministro de Medio Ambiente podrá ordenar medidas administrativas que podrán incluir el cierre del establecimiento.
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente artículo.
Capítulo IV Conservación de los hábitats naturales, de la fauna y de la flora silvestres Artículos L414-1 a
L414-8
Sección I Espacios de la Red Natura 2000 Artículos L414-1 a
L414-7
Artículo L414-1 (Disposición nº 2001-321 de 11 de abril de 2001 art. 8 Diario Oficial de 14 de abril de 2001) (Ley nº 2005-157 de 23 de febrero de 2005 art. 141, art.142 Diario Oficial de 24 de febrero de 2005)
I. - Las zonas especiales de conservación serán espacios marítimos y terrestres a proteger, que incluirán: - los hábitats naturales amenazados de desaparición o considerablemente reducidos, o que constituyan ejemplos
notables de las características propias de las regiones alpina, atlántica, continental y mediterránea; - los hábitats naturales que alberguen especies de fauna o flora silvestres escasas, vulnerables o amenazadas de
extinción; - los hábitats naturales que alberguen especies de fauna o flora silvestres merecedoras de especial atención como
consecuencia de la especificidad de su hábitat o de los efectos de su explotación sobre su estado de conservación; II. - Las zonas de especial protección serán: - los espacios marítimos y terrestres especialmente apropiados para la supervivencia y la reproducción de las
especies de aves acuáticas que figuren en un listado efectuado según las condiciones establecidas por decreto adoptado en Conseil d'Etat;
- los espacios marítimos o terrestres que sirvan de áreas de reproducción, muda e hibernación, o lugares de paso en sus movimientos migratorios, para especies de aves diferentes de las que figuran en el listado arriba mencionado.
III. - Antes de notificar a la Comisión Europea la propuesta de inscripción de una zona especial de conservación o antes de que se emita la decisión de designar una zona como de especial protección, se tendrá que someter el proyecto de perímetro de la zona a consulta de los órganos de decisión de los municipios y de los organismos públicos de cooperación intermunicipal interesados. La autoridad administrativa no podrá obviar el resultado de dicha consulta sin una decisión motivada.
Antes de notificar a la Comisión Europea la propuesta de inscripción de un perímetro modificado de una zona especial de conservación o antes de que se emita la decisión de designar una zona como de especial protección, se tendrá que someter el proyecto de perímetro de la zona a consulta de los órganos de decisión de los municipios y de los organismos públicos de cooperación intermunicipal interesados por la modificación del perímetro. La autoridad administrativa no podrá obviar el resultado de dicha consulta sin una decisión motivada.
IV. - Los espacios naturales designados como zonas especiales de conservación y zonas de especial protección por decisión de la autoridad administrativa, formarán la Red Ecológica Europea Natura 2000 con la denominación común de "Espacios de la red Natura 2000".
V. - Los espacios Natura 2000 serán objeto de medidas destinadas a mantener en un estado favorable o restablecer para su conservación a largo plazo los hábitats naturales y las poblaciones de especies de fauna y flora silvestres que hubieran motivado la calificación de las zonas. Los Espacios de la Red Natura 2000 serán asimismo objeto de medidas de prevención apropiadas para evitar el deterioro de estos hábitats naturales y las alteraciones que pudieran afectar de modo significativo dichas especies.
Dichas medidas serán elaboradas en coordinación con las entidades territoriales interesadas y sus agrupaciones, así como con representantes de los propietarios y explotadores de los terrenos incluidos en el espacio natural.
Las mismas tendrán en cuenta las exigencias económicas, sociales y culturales, así como las particularidades regionales y locales. Se adaptarán a los peligros específicos que amenazan estos hábitats naturales y especies. No se prohibirán las actividades humanas cuando no tuvieran efectos significativos respecto a los objetivos mencionados en el párrafo anterior. No se considerarán actividades perturbadoras ni tendrán tales efectos las actividades piscícolas, la caza y demás actividades cinegéticas practicadas en las condiciones y en los territorios autorizados por las leyes y reglamentos en vigor.
Dichas medidas serán tomadas en el marco de los contratos o de las declaraciones previstos en el artículo L. 414-3
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CÓDIGO DE MEDIO AMBIENTE o en aplicación de las disposiciones legales o reglamentarias, principalmente de aquéllas relativas a los parques nacionales, las reservas naturales, los biótopos y los espacios naturales clasificados.
Artículo L414-2 (Disposición nº 2001-321 de 11 de abril de 2001 art. 8 Diario Oficial de 14 de abril de 2001) (Ley nº 2005-157 de 23 de febrero de 2005 art. 144 Diario Oficial de 24 de febrero de 2005)
I. - Para cada espacio Natura 2000, se elaborará un plan de objetivos que establecerá las orientaciones de gestión, las medidas previstas en el artículo L. 414-1, las modalidades de aplicación las mismas así como las disposiciones financieras de acompañamiento.
Dicho plan de objetivos podrá ser elaborado y aprobado tras la notificación a la Comisión Europea de la propuesta de inscripción de una zona especial de conservación, o de designación de una zona como de especial protección.
II. - La autoridad administrativa creará un comité de pilotaje Natura 2000, encargado de la elaboración y el seguimiento del plan de objetivos.
El comité estará compuesto de representantes de las entidades territoriales interesadas y sus agrupaciones, así como de representantes de los propietarios y explotadores de los terrenos incluidos en el espacio Natura 2000. Los representantes del Estado participarán en él a título consultivo.
III. - Los representantes de las entidades territoriales y sus agrupaciones designarán, de entre sus miembros, al presidente del comité de pilotaje Natura 2000 así como a la entidad territorial o la agrupación encargada de la elaboración del plan de objetivos y del seguimiento de su aplicación.
En su defecto, la elaboración de dicho plan de objetivos y las actividades necesarias para su aplicación serán asumidas por la autoridad administrativa.
IV. - Una vez elaborado el plan de objetivos, deberá ser aprobado por la autoridad administrativa. Si el plan de objetivos no hubiera sido sometido a su aprobación dentro de los dos años siguientes a la creación del comité de pilotaje Natura 2000, la autoridad administrativa podrá encargarse de su elaboración.
V. - Cuando el espacio natural estuviera íntegramente incluido en un terreno dependiente del Ministerio de Defensa, la autoridad administrativa presidirá el comité de pilotaje Natura 2000 y elaborará el plan de objetivos conjuntamente con el comité de pilotaje Natura 2000.
VI. - Mediante contrato concluido entre el Estado y la entidad territorial o la agrupación designada con arreglo a las condiciones previstas en el punto III, se definirán las modalidades y medidas de acompañamiento necesarias para la elaboración del plan de objetivos y el seguimiento de su aplicación.
Artículo L414-3 (Disposición nº 2001-321 de 11 de abril de 2001 art. 8 Diario Oficial de 14 de abril de 2001) (Ley nº 2005-157 de 23 de febrero de 2005 art. 143 Diario Oficial de 24 de febrero de 2005)
I. - Para la aplicación del plan de objetivos, los titulares de derechos reales y personales sobre los terrenos situados dentro del espacio natural podrán concluir con la autoridad administrativa contratos, que se denominarán "contratos Natura 2000". Los contratos Natura 2000 concluidos por los titulares de explotaciones agrícolas podrán tener la forma de contratos que suscriban compromisos agroambientales.
El contrato Natura 2000 conllevará un conjunto de compromisos en conformidad con las orientaciones y medidas definidas por el plan de objetivos, los cuales se referirán a la conservación y, en su caso, al restablecimiento de los hábitats naturales y de las especies que hubieran motivado la creación del espacio Natura 2000. Dicho contrato definirá el carácter y las condiciones de las ayudas estatales así como las contraprestaciones a cargo del beneficiario. En caso de incumplimiento de los compromisos suscritos, se reembolsarán las ayudas estatales con arreglo a las condiciones establecidas por Decreto.
La jurisdicción administrativa conocerá de los litigios relativos a la ejecución de este contrato. II. - Los titulares de los derechos reales y personales sobre los terrenos incluidos en el espacio natural podrán
adherirse a la declaración Natura 2000. La declaración Natura 2000 incluirá un conjunto de compromisos definidos por el plan de objetivos, no previéndose en dicho plan ninguna disposición financiera de acompañamiento. La declaración se incorporará como anexo al plan de objetivos.
Artículo L414-4 (Disposición nº 2001-321 de 11 de abril de 2001 art. 8 Diario Oficial de 14 de abril de 2001) (Disposición nº 2004-489 de 3 de junio de 2004 art. 2 Diario Oficial de 5 de junio de 2004 modificado por el Diario Oficial de la República Francesa de 10 de julio de 2004)
I. - Los programas o proyectos de obras, construcciones o trabajos sujetos a un régimen de autorización o aprobación administrativa, y cuya realización pudiera afectar de manera notable un espacio Natura 2000, serán objeto de un estudio de impacto sobre los objetivos de conservación de dicho espacio. En el caso de aquéllos programas que hubieran sido previstos por disposiciones legales y reglamentarias y no fueran sometidos a un estudio de impacto, se realizará una evaluación con arreglo al procedimiento previsto en los artículos L. 122-4 y siguientes del presente Código.
Las obras, construcciones o trabajos contemplados en los contratos Natura 2000 estarán dispensados del estudio de impacto mencionado en el párrafo anterior.
II. - La autoridad competente no podrá autorizar o aprobar un programa o proyecto mencionado en el párrafo primero del punto I cuando el estudio de impacto determine que su realización es perjudicial para la conservación del espacio natural.
III. - Sin embargo, cuando la única solución que existiera fuera la puesta en práctica de un programa o proyecto
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CÓDIGO DE MEDIO AMBIENTE cuyo carácter fuera perjudicial para la conservación del espacio natural, la autoridad competente podrá dar su autorización por razones de interés público. En este caso, velará por que se adopten medidas compensatorias con el fin de mantener la coherencia global de la Red de Espacios Natura 2000. Estas medidas compensatorias correrán a cargo del beneficiario de las obras, construcciones o trabajos. De dichas actuaciones se informará a la Comisión Europea.
IV. - Cuando en el espacio natural se encuentre un tipo de hábitat natural o una especie prioritarios que figuren, en virtud de la protección reforzada que los ampara, en listados establecidos con arreglo a las condiciones determinadas por decreto adoptado en Conseil d'Etat, la autorización mencionada en el punto III solamente podrá ser concedida por motivos relacionados con la salud o la seguridad pública o en virtud de importantes beneficios aportados al medio ambiente o, previo dictamen de la Comisión Europea, por otras razones de interés público.
Artículo L414-5 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 8 Diario Oficial de 14 de abril de 2001)
I. - Cuando un programa o proyecto de obras, construcciones o trabajos contemplado en el artículo L.414-4 se realice sin el estudio de impacto previo y sin la autorización requerida, o en contra de la denegación de autorización, la autoridad estatal competente dirigirá al interesado un requerimiento para que cese inmediatamente la actividad y proceda, en el plazo por ella fijado, a la reposición del espacio natural a su estado anterior.
Salvo en caso de urgencia, el interesado podrá presentar sus alegaciones con anterioridad al requerimiento. II. - Transcurrido el plazo fijado, si el interesado no hubiera procedido a la reposición del espacio natural a su
estado anterior, la autoridad administrativa podrá: 1° Ordenar al interesado la consignación ante un contable público de una suma correspondiente al importe de los
trabajos que deban realizarse, la cual le será restituida conforme vaya ejecutando las medidas impuestas. Esta suma se recaudará en las mismas condiciones que las establecidas en materia de créditos del Estado que no sean relativos al impuesto y al patrimonio. Para el cobro de esta suma, el Estado ostenta un privilegio en los mismos términos que el que está contemplado en el artículo 1920 del Código General de Impuestos;
2° Ordenar que de oficio y por cuenta del interesado se proceda a la reposición del espacio natural a su estado anterior;
III. - Las sumas consignadas en aplicación de lo dispuesto en el apartado 1º del punto II, podrán ser utilizadas para pagar los gastos generados por la ejecución de oficio de las medidas previstas en el apartado 2º del punto II;
Artículo L414-6 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 8 Diario Oficial de 14 de abril de 2001)
Un decreto adoptado en Conseil d'Etat precisará las condiciones de aplicación de la presente sección.
Artículo L414-7 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 8 Diario Oficial de 14 de abril de 2001)
Lo dispuesto en la presente sección no será de aplicación en los departamentos de Ultramar.
Sección II Orientaciones regionales de gestión y conservación de la fauna silvestre y sus
hábitats Artículo L414-8
Artículo L414-8 (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 159I Diario Oficial de 24 de febrero de 2005)
En cada región y en la entidad territorial de Córcega, se elaborará un documento en el que consten las orientaciones regionales de gestión y conservación de la fauna silvestre y sus hábitats, con el fin de promover una gestión sostenible. Dicho documento será elaborado de conformidad con los principios enunciados en el artículo L. 420-1 y tendrá en cuenta las orientaciones regionales en materia forestal contempladas en el artículo L.4 del Código Forestal y las prioridades de la política de producciones agrícolas y de ordenación de las explotaciones mencionadas en el artículo L. 313-1 del Código Rural.
Las orientaciones regionales de gestión y conservación de la fauna silvestre y sus hábitats precisarán los objetivos a alcanzar en cuanto a la conservación y gestión sostenible de la fauna de la región, sea cinegética o no, y sus hábitats y a la existencia simultánea de diferentes aprovechamientos de los recursos naturales. Las mismas incluirán una evaluación de las principales tendencias de la evolución de las especies animales y sus hábitats, de las amenazas derivadas de las actividades humanas y de los daños que les son ocasionados. Los planes departamentales de gestión cinegética citados en el artículo L. 425-1 contribuirán a la elaboración de esta evaluación.
Las orientaciones regionales de gestión y conservación de la fauna silvestre y sus hábitats serán adoptadas por el Prefecto de la región y, en Córcega, por el Prefecto de Córcega, previo dictamen de las entidades territoriales y de las personas físicas o jurídicas competentes en los ámbitos en cuestión.
Capítulo V Disposiciones penales Artículos L415-1 a
L415-5
Sección I Comprobación de las infracciones Artículos L415-1 a
L415-2
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CÓDIGO DE MEDIO AMBIENTE Artículo L415-1 (Ley nº 2003-239 de 18 de marzo de 2003 art. 91 II Diario Oficial de 19 de marzo de 2003)
Además de los funcionarios y agentes de la policía judicial citados en los artículos 16, 20 y 21 del Código de Proceso Penal, estarán habilitados para comprobar las infracciones a lo dispuesto en los artículos L.411-1, L.411-2, L.411-3, L.412-1, L.413-2 a L.413-5:
1° Los agentes de aduanas nombrados a estos efectos; 2° Los funcionarios y agentes jurados nombrados a estos efectos por el Ministro de Medio ambiente, quienes
pueden ser nombrados, además, para comprobar las infracciones a lo dispuesto en materia de caza y de pesca cometidas en las reservas naturales;
3° Los agentes del Estado y de la Oficina Nacional Forestal nombrados para comprobar las infracciones en materia forestal, de caza, pesca, inspección sanitaria, protección de las especies animales y vegetales, en todas las circunscripciones que estén bajo su responsabilidad;
4° Los agentes jurados y destinados en los Parques Nacionales, en la Oficina Nacional de la Caza y a la Fauna Silvestre y en el Consejo Superior de Pesca;
4° bis Los guardas rurales; 5° Cuando las medidas de protección se refieran al dominio público marítimo o a las aguas territoriales, los agentes
habilitados por el Decreto de 9 de enero de 1852 sobre el ejercicio de la pesca marítima para comprobar las infracciones a la reglamentación sobre el ejercicio de la pesca marítima, así como los funcionarios encargados de ejercer las funciones de policía del dominio público marítimo y de las aguas territoriales.
NOTA - Ley 2003-329 artículo 131: Los artículos 77, ... 86 a 89, 91 ... serán aplicables en Mayotte.
Artículo L415-2 Los hechos recogidos en los atestados levantados por los funcionarios y agentes mencionados en el artículo
L.415-1 se presumirán ciertos, salvo prueba en contrario. Los atestados deberán ser remitidos directamente al Fiscal de la República dentro de los tres días siguientes a su
incoación, bajo pena de nulidad. Las normas de proceso penal promulgadas en los artículos 17 a 21 bis del Decreto de 9 de enero de 1852, serán
aplicables en caso de infracciones cometidas en el dominio público marítimo o en las aguas territoriales.
Sección II Sanciones Artículos L415-3 a
L415-5
Artículo L415-3 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 13º Diario Oficial de 3 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 130, art. 158 II Diario Oficial de 24 de febrero de 2005)
Será castigado con la pena de seis meses de prisión y una multa de 9.000 euros: 1° Infringiendo las prohibiciones contempladas en las disposiciones del artículo L. 411-1 y en los reglamentos
dictados en aplicación del artículo L. 411-2, el que: a) Atentare contra la conservación de especies animales no domésticas, con excepción de las alteraciones
intencionadas; b) Atentare contra la conservación de especies vegetales no cultivadas; c) Destruyere espacios naturales donde se encontrasen fósiles que permitieran estudiar la historia de la biosfera y
de las primeras actividades humanas, o que destruyere o extrajere fósiles de estos espacios. 2° El que introdujere voluntariamente en el medio natural, transportare, vendiere de forma ambulante, utilizare,
ofertare, vendiere o comprare un espécimen de una especie animal o vegetal contraviniendo las disposiciones del artículo L. 411-3 o de los reglamentos dictados para su aplicación;
3° El que poseyere, cediere, utilizare, transportare, introdujere, importare, exportare o reexportare la totalidad o parte de animales y vegetales, contraviniendo lo dispuesto en el artículo L. 412-1 o en los reglamentos dictados para su aplicación;
4° El que fuere responsable de un establecimiento de cría, venta, alquiler o custodia de animales de especies no domésticas, o de un establecimiento destinado a la exhibición al público de especimenes vivos de la fauna, sin ser titular del certificado de capacitación previsto en el artículo L. 413-2;
5° El que abriere o explotare un establecimiento de este tipo contraviniendo lo dispuesto en el artículo L. 413-3 o en los reglamentos dictados para su aplicación.
Artículo L415-4 Las infracciones a lo dispuesto en el artículo L.411-1 estarán sujetas, además, a las sanciones previstas en los
artículos L.428-9 y L.428-11.
Artículo L415-5 Los agentes encargados de comprobar las infracciones a lo dispuesto en el artículo L.415-3 podrán proceder a la
incautación del objeto de la infracción así como de los instrumentos y vehículos que hubieran servido para la comisión de la infracción.
Los gastos de transporte, conservación y custodia de los objetos incautados correrán a cargo del inculpado.
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CÓDIGO DE MEDIO AMBIENTE La sentencia condenatoria podrá ordenar la confiscación del objeto de la infracción así como de los instrumentos y
vehículos que hubieran servido para la comisión de la infracción. Podrá ordenar asimismo, por cuenta del autor de la infracción, la publicación de un extracto de la sentencia mediante anuncios o edictos, en las condiciones previstas en el artículo 131-35 del Código Penal.
Título II Caza Artículos L421-1 a
L420-4
Artículo L420-1 (Ley nº 2003-698 de 30 de julio de 2003 art. 2 Diario Oficial de 31 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 149 Diario Oficial de 24 de febrero de 2005)
Se considerará de interés general la gestión sostenible del patrimonio faunístico y sus hábitats. La práctica de la caza, actividad de carácter medioambiental, cultural, social y económico, participará en esta gestión y contribuirá al equilibrio entre las especies animales, los medios y las actividades humanas garantizando un verdadero equilibrio entre las actividades agrícola, silvícola y cinegética.
El principio de utilización racional de los recursos naturales renovables tendrá prioridad sobre las actividades de uso y explotación de dichos recursos. Mediante sus actividades de gestión y regulación de las especies animales cuya caza está autorizada y sus realizaciones para proteger los biótopos, los cazadores contribuirán a la gestión equilibrada de los ecosistemas. Participarán de esta forma en el desarrollo de las actividades económicas y ecológicas en los medio naturales, especialmente en aquellos de carácter rural.
Artículo L420-2 El Gobierno ejercerá las funciones de vigilancia y policía de caza velando por el interés general.
Artículo L420-3 (Ley nº 2005-157 de 23 de febrero de 2005 art. 150, art.151, art. 154 Diario Oficial de 24 de febrero de 2005)
Se considerará acción de cazar, la ejercida voluntariamente para buscar, perseguir o aguardar la llegada de las piezas de caza y cuya finalidad o resultado sea la captura o la muerte de las mismas.
La acción preparatoria de caza anterior a la búsqueda efectiva de las piezas, incluso cuando consista en otear sin armas el paso de los animales en el territorio en el que se ejerza el derecho de caza, y la acción de buscar las piezas de caza realizada por un auxiliar de caza no serán consideradas acciones de cazar. No se considerará acción de cazar el hecho de rematar a un animal herido de muerte o agonizante, ni el encarne, ni el adiestramiento de perros sabuesos sin captura de piezas de caza en aquellos territorios en los que se ejerza el derecho de caza del propietario y durante los periodos hábiles de caza fijados por la autoridad administrativa.
Tampoco se considerará acción de cazar la búsqueda de un animal herido o el control del resultado de un tiro en un animal realizado por un cuidador de perro de rastro.
Los entrenamientos, concursos y pruebas de perros de caza o de aves de cetrería, autorizados por la autoridad administrativa, no serán considerados acciones de cazar.
No constituirá una infracción el hecho de ir a recuperar sus perros perdidos a terrenos de terceros al final de la caza.
Artículo L420-4 Lo dispuesto en el presente título no será de aplicación en el departamento de La Guayana, con la excepción de
los artículos L.421-1 y L.428-24.
Capítulo I Organización de la caza Artículos L421-1 a
L421-19
Sección II Oficina Nacional de Caza y Fauna Silvestre Artículos L421-1 a
L421-4
Subsección 1 Disposiciones generales Artículo L421-1
Artículo L421-1 (Ley nº 2003-698 de 30 de julio de 2003 art. 3 Diario Oficial de 31 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 152, art. 159 II, art. 160, art. 161, art. 162 Diario Oficial de 24 de febrero de 2005)
I. - La Oficina Nacional de Caza y Fauna Silvestre es una entidad pública del Estado, sujeta al régimen de doble tutela del Ministro competente en materia de caza y del Ministro de Agricultura. Tendrá por misión realizar estudios, investigaciones y experimentos correspondientes a la conservación, restauración y gestión de la fauna silvestre y sus hábitats, la mejora de la misma a través de una gestión cinegética sostenible, así como la elaboración y difusión de sistemas y prácticas para una mejor gestión de los territorios rurales. Impartirá formación dentro de ese campo y participará en la revalorización y vigilancia de la fauna silvestre así como en el cumplimiento de las normas de policía de caza. Sus agentes, que tendrán funciones de policía en el departamento, prestarán su apoyo al Prefecto en materia
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CÓDIGO DE MEDIO AMBIENTE de orden público y de policía administrativo, dentro de los ámbitos de su competencia.
Prestará su apoyo al Estado para la evaluación de la situación de la fauna silvestre y para el seguimiento de su gestión, y proporcionará al mismo su pericia y su asistencia técnica para la evaluación de los planes de gestión de la fauna silvestre y de mejora de la calidad de sus hábitats. También prestará su apoyo al Estado para la elaboración de las orientaciones regionales de gestión y conservación de la fauna silvestre y sus hábitats mencionadas en el artículo L. 414-8.
El Estado encargará a dicha Oficina la organización material del examen para obtener la licencia de caza. La Oficina Nacional de Caza y Fauna Silvestre podrá colaborar con la Federación Nacional de Cazadores y con las
Federaciones Departamentales de Cazadores sobre cuestiones relativas a sus respectivos ámbitos de actuación. Las actividades emprendidas conjuntamente darán lugar a la conclusión de acuerdos específicos.
II. - El consejo de administración de la Oficina Nacional de Caza y Fauna Silvestre estará formado por veintidós miembros, de los cuales la mitad serán representantes de los medios cinegéticos. Comprenderá a representantes de la federaciones de caza, a representantes de las asociaciones más representativas de caza especializada designados de entre una lista elaborada por la Federación Nacional de Cazadores, a representantes del Estado, de sus organismos públicos encargados de la gestión de espacios naturales y forestales, de organizaciones agrícolas y forestales, de organismos de protección de la naturaleza, del personal de la entidad y de personas cualificadas en el ámbito de la caza y la fauna silvestre.
El Consejo Científico de la Oficina Nacional de Caza y Fauna Silvestre, dependiente del Director General, aconsejará a éste sobre la política de la entidad en materia de investigación científica y técnica. Valorará los trabajos científicos realizados por los investigadores de la entidad. Participará en la evaluación del estado de la fauna silvestre y se ocupará del seguimiento de su gestión.
Los servicios de la entidad estarán dirigidos por un Director General nombrado por decreto a propuesta del Ministro competente en materia de caza y del Ministro de Agricultura.
III. - Los recursos económicos de la entidad estarán formados por las tasas cinegéticas, por subvenciones y contribuciones del Estado y de otras entidades públicas que asumen las funciones de regalía y de interés patrimonial que realiza la Oficina, por las tasas por servicios prestados, por préstamos, por donaciones y legados y por el producto de las ventas que realice en cumplimiento de sus funciones. Mediante orden se establecerán las normas de presentación del presupuesto y contabilidad de la entidad, que en materia de recursos y cargas, deberán diferenciar las funciones de regalía y de interés patrimonial de las propiamente cinegéticas.
Subsección 2 Administración general Artículos L421-2 a
L421-4
Artículo L421-2 Los guardas de la Oficina Nacional de Caza y Fauna Silvestre estarán sujetos a un estatuto nacional.
Artículo L421-3 Las funciones de agente jurado de la Oficina Nacional de Caza y Fauna Silvestre con competencia sobre aguas y
bosques, estarán sujetas a las normas de incompatibilidad contempladas en el artículo L.341-4 del Código Forestal.
Artículo L421-4 I. - Previa autorización de la Comisión Consultiva Paritaria y con carácter excepcional los agentes jurados podrán
ser objeto de las siguientes medidas: 1° Podrá ser promocionados a uno de los escalafones superiores de su grado o a un grado inmediatamente
superior, cuando hubieran cumplido un acto de valentía debidamente comprobado o cuando hubieran sido heridos de gravedad en el desempeño de sus funciones;
2° Podrán, además, ser ascendidos a título póstumo a un nivel jerárquico superior, cuando hubieran resultado heridos de muerte en esas mismas circunstancias.
II. - Los agentes promocionados en virtud de lo anteriormente dispuesto, serán ascendidos dentro del año en curso, si aún no lo hubieran sido. En caso de fallecimiento, serán promocionados con fecha de la defunción.
III. - Previa autorización de la Comisión Consultiva Paritaria y con carácter excepcional, los agentes en prácticas que hubieran resultado heridos de muerte en el desempeño de sus funciones podrán ser nombrados agentes titulares con carácter póstumo.
Sección IV Federaciones Departamentales de Cazadores Artículos L421-5 a
L421-11-1
Artículo L421-5 (Ley nº 2003-698 de 30 de julio de 2003 art. 6 Diario Oficial de 31 de julio de 2003) (Disposición nº 2003-719 de 1 de agosto de 2003 art. 1 Diario Oficial de 3 de agosto de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 VII, art. 177 Diario Oficial de 24 de febrero de 2005)
Las asociaciones denominadas Federaciones Departamentales de Cazadores participarán en la revalorización del patrimonio cinegético del departamento, en la protección y la gestión de la fauna silvestre y sus hábitats. Tendrán como misión la promoción y defensa de la caza y de los intereses de sus afiliados.
Prestarán su apoyo en la prevención de la caza furtiva. Dirigirán acciones de información, educación y asistencia
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CÓDIGO DE MEDIO AMBIENTE técnica destinadas a los gestores de los territorios, a los cazadores y, en su caso, a los guardas de caza particulares.
Coordinarán las acciones de las asociaciones municipales e intermunicipales de caza autorizadas. Dirigirán acciones de prevención de los daños causados por la caza y se ocuparán de las indemnizaciones de los
daños causados por la caza mayor, en las condiciones previstas en los artículos L. 426-1 y L. 426-5. Elaborarán, junto con los propietarios, los gestores y los usuarios de los territorios correspondientes, un plan
departamental de gestión cinegética, de conformidad con lo dispuesto en el artículo L. 425-1. Podrán prestarles su apoyo en la validación de la licencia de caza. Las asociaciones de caza especializada participarán en los trabajos de las federaciones. Para el desempeño de sus funciones, las federaciones podrán incorporar a agentes de desarrollo. Estos velarán,
especialmente, por el cumplimiento del plan departamental de gestión cinegética. Con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat, los hechos recogidos en sus atestados se presumirán ciertos, salvo prueba en contrario.
Artículo L421-6 (Ley nº 2003-698 de 30 de julio de 2003 art. 8 Diario Oficial de 31 de julio de 2003)
Las Federaciones Departamentales de Cazadores tendrán la condición de parte procesal legítima respecto a los hechos que constituyeran una infracción tanto a las disposiciones del presente título como a los reglamentos dictados para su aplicación y que perjudicaran de modo directo o indirecto los intereses colectivos, materiales y morales cuya defensa y representación les correspondiese.
A estos efectos, se remitirá al Presidente de la Federación Departamental o Interdepartamental interesada una copia de los atestados e informes previstos en el artículo L.428-19 y siguientes.
Artículo L421-7 (Ley nº 2003-698 de 30 de julio de 2003 art. 9, art. 10 1º Diario Oficial de 31 de julio de 2003)
I. - Se elaborará un plan departamental de gestión cinegética en cada departamento, de conformidad con las orientaciones regionales de gestión de la fauna silvestre y de mejora de la calidad de sus hábitats establecidas por el Prefecto de la región, o por el Presidente del Consejo Regional cuando fuera la región la que hubiera solicitado ejercer esta competencia. Este plan tendrá vigencia por un período de cinco años renovable. Será elaborado por la Federación Departamental de Cazadores teniendo en cuenta el documento departamental de gestión del espacio agrícola y forestal mencionado en el artículo L.112-1 del Código Rural y será aprobado, previo dictamen del Consejo Departamental de la Caza y de la Fauna Silvestre, por el Prefecto quien verificará en particular su conformidad con los principios enumerados en el artículo L.420-1. Podrá ser completado con los planes locales elaborados y aprobados con arreglo al mismo procedimiento. Estos planes serán aplicados bajo la responsabilidad del Prefecto y servirán de marco para las acciones de la Federación Departamental de Cazadores.
II. - El plan departamental de gestión cinegética incluirá en particular: 1° Los planes de caza y los planes de gestión; 2° Las medidas relativas a la seguridad de los cazadores y de los no cazadores; 3° Las acciones a llevar a cabo para mejorar la práctica de la caza, como son la concepción y puesta en práctica
de los planes de gestión aprobados, el número máximo de capturas autorizado, la regulación de los animales predadores y depredadores, las sueltas de piezas de caza, el rastreo de los animales heridos en la caza mayor y las disposiciones relativas a la siembra;
4° Las acciones llevadas a cabo para preservar o restaurar los hábitats naturales de la fauna silvestre. III. - Para realizar una mejor coordinación de las acciones de los cazadores, los beneficiarios de planes de caza y
de planes de gestión se afiliarán a la Federación Departamental de Cazadores. IV. - El plan departamental de gestión cinegética será oponible a los cazadores y a las sociedades, agrupaciones y
asociaciones de caza del departamento.
Artículo L421-8 (Ley nº 2003-698 de 30 de julio de 2003 art. 11 Diario Oficial de 31 de julio de 2003)
I. - Solamente podrá existir una federación de cazadores por departamento. II. - En interés general y a fin de contribuir a la coordinación y coherencia de las actividades cinegéticas en el
departamento, cada Federación Departamental de Cazadores reagrupará a: 1° Los titulares de la licencia de caza que la hubieran validado en el departamento; 2° Las personas físicas y las personas jurídicas titulares de derechos de caza en terrenos situados en el
departamento y beneficiarias de un plan de caza o de un plan de gestión para la totalidad o parte de esos terrenos. III. - Además, podrán afiliarse a la federación: 1° Cualquier persona titular de la licencia de caza o de derechos de caza sobre terrenos situados en el
departamento; 2° Salvo oposición de su Consejo de Administración, cualquier persona que desee beneficiarse de los servicios de
la Federación. Una misma persona podrá afiliarse a la Federación Departamental en calidad de titular de una licencia de caza y
de titular de derechos de caza. IV. - La afiliación será comprobada mediante el pago a la Federación de una cuota anual cuyo importe será fijado
por la Asamblea General, a propuesta del Consejo de Administración. Dicho importe podrá variar según se trate de la afiliación de un cazador o del titular de derechos de caza.
Los afiliados serán asimismo deudores de las eventuales cantidades prorrateadas entre ellos y fijadas por la
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CÓDIGO DE MEDIO AMBIENTE Federación en concepto de indemnización por los daños causados por la caza mayor, según lo dispuesto en el artículo L.426-5.
Artículo L421-9 (Ley nº 2003-698 de 30 de julio de 2003 art. 12 Diario Oficial de 31 de julio de 2003)
Los estatutos de las Federaciones Departamentales de Cazadores deberán ajustarse al modelo adoptado por el Ministro competente en materia de caza.
Sus Asambleas Generales resolverán por mayoría de votos de los miembros presentes o representados. Cada titular de una licencia de caza afiliado a una Federación tendrá un voto. Podrá apoderar a otro afiliado de la
misma Federación. Cada titular de derechos de caza en el departamento afiliado a una Federación dispondrá de un número de votos
que estarán en función de la superficie de su territorio y que no podrá superar un máximo establecido. Podrá apoderar a otro afiliado de la misma Federación.
El número máximo de votos del que podrá disponer cada afiliado, ya sea directamente o por poder, estará determinado según el modelo de estatutos mencionado en el párrafo primero.
Cualquier persona que sea miembro de la Federación y titular de una licencia de caza validada consecutivamente durante los últimos cinco años, podrá ser candidata al Consejo de Administración, cualquiera que fuera su edad.
Artículo L421-9-1 (Ley nº 2003-698 de 30 de julio de 2003 art. 13 Diario Oficial de 31 de julio de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 173 V Diario Oficial de 27 de julio de 2005 con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cada Federación Departamental de Cazadores designará, en las condiciones previstas en el artículo L. 612-3 del Código de Comercio, a un auditor de cuentas que ejercerá sus funciones con arreglo a las condiciones previstas en este artículo.
El informe especial mencionado en el tercer párrafo del artículo L. 612-3 del Código de Comercio será comunicado al Prefecto por el auditor de cuentas.
Artículo L421-10 (Ley nº 2003-698 de 30 de julio de 2003 art. 14 Diario Oficial de 31 de julio de 2003)
El Prefecto controlará la ejecución de las misiones de servicio público en las que participa la Federación Departamental de Cazadores.
Se le dará traslado de los acuerdos de la Asamblea General, del informe anual del auditor de cuentas y de las cuentas anuales.
El presupuesto de la Federación será ejecutable de pleno derecho tras haber sido comunicado al Prefecto. Si, tras haber recabado las observaciones del Presidente de la Federación, el Prefecto comprobara que el
presupuesto aprobado no le permite a la misma cumplir su misión de indemnización por los daños causados por la caza mayor y su misión de organización de la formación de preparación para el examen de la licencia de caza, el mismo procederá a la asignación de oficio al presupuesto de los ingresos y gastos necesarios.
Artículo L421-11 (Ley nº 2003-698 de 30 de julio de 2003 art. 15 Diario Oficial de 31 de julio de 2003)
Las Federaciones Departamentales dispondrán libremente de sus reservas de conformidad con su objeto social.
Artículo L421-11-1 (Ley nº 2003-698 de 30 de julio de 2003 art. 16 Diario Oficial de 31 de julio de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 173 V Diario Oficial de 27 de julio de 2005 con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de aplicación de las disposiciones del tercer párrafo del artículo L. 612-3 del Código de Comercio, o de incumplimiento grave y persistente comprobado tras un procedimiento contradictorio por parte de una Federación Departamental, de su cometido de indemnización por los daños causados por la caza mayor y de su misión de organización de la formación de preparación para el examen de la licencia de caza, el Prefecto comunicará sus observaciones a la Cámara Regional de Cuentas. Si ésta comprobara que la Federación Departamental no ha adoptado las medidas suficientes para restablecer las condiciones normales de funcionamiento, pedirá al Prefecto que se encargue de su administración o de la gestión de oficio de su presupuesto hasta su ejecución.
Sección V Federaciones Interdepartamentales de Cazadores Artículo L421-12
Artículo L421-12 (Ley nº 2003-698 de 30 de julio de 2003 art. 17 Diario Oficial de 31 de julio de 2003)
Se crearán dos Federaciones interdepartamentales de cazadores para los departamentos de Essonne, Val-d'Oise e Yvelines, por una parte, y para los departamentos de París, Hauts-de-Seine, Seine-Saint-Denis y Val-de-Marne, por otra parte.
Las disposiciones relativas a las Federaciones Departamentales de Cazadores se aplicarán a las Federaciones mencionadas en el párrafo primero, sin perjuicio de las adaptaciones que requiera su carácter interdepartamental.
Las reglas relativas a la designación del Consejo de Administración de la Federación interdepartamental de París, Hauts-de-Seine, Seine-Saint-Denis y Val-de-Marne establecen que sus miembros serán, en su mitad, designados por el
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CÓDIGO DE MEDIO AMBIENTE Ministro competente en materia de caza entre personalidades cualificadas en el campo cinegético, a propuesta de la Federación Nacional de Cazadores, y, en su otra mitad, elegidos por los afiliados de la Federación. El Presidente será designado por el Ministro competente en materia de caza, a propuesta del Consejo de Administración.
Sección VI Federaciones Regionales de Cazadores Artículo L421-13
Artículo L421-13 (Ley nº 2003-698 de 30 de julio de 2003 art. 10 2° art. 18 Diario Oficial de 31 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 153, art. 159 Diario Oficial de 24 de febrero de 2005)
Las asociaciones denominadas Federaciones Regionales de Cazadores reagruparán a todas las federaciones departamentales e interdepartamentales pertenecientes a la región administrativa del territorio metropolitano cuya afiliación haya sido comprobada mediante el pago de una cuota obligatoria. Representarán a las federaciones departamentales e interdepartamentales de cazadores a escala regional y dirigirán y coordinarán las acciones en favor de la fauna silvestre y sus hábitats.
Dichas asociaciones serán consultadas por la autoridad competente para la elaboración de las orientaciones regionales de gestión y conservación de la fauna silvestre y sus hábitats mencionadas en el artículo L. 414-8.
Las asociaciones de caza especializada participarán en los trabajos de la Federación Regional. Las disposiciones del párrafo primero del artículo L. 421-9, del artículo L. 421-10 y del artículo L. 421-11 serán
aplicables a las Federaciones Regionales de Cazadores.
Sección VII Federación Nacional de Cazadores Artículos L421-14 a
L421-18
Artículo L421-14 (Ley nº 2003-698 de 30 de julio de 2003 art. 19, art. 20 Diario Oficial de 31 de julio de 2003)
La asociación denominada Federación Nacional de Cazadores reagrupa a todas las federaciones departamentales, interdepartamentales y regionales de cazadores cuya afiliación haya sido comprobada por el pago de una cuota obligatoria. Representará a las Federaciones departamentales, interdepartamentales y regionales de cazadores a escala nacional.
Se ocupará de la promoción y la defensa de la caza así como de la representación de los intereses cinegéticos. Coordinará la acción de las Federaciones departamentales, interdepartamentales y regionales de cazadores.
Las asociaciones de caza especializada participarán en los trabajos de la Federación Nacional. La Federación Nacional de Cazadores determinará cada año en Asamblea General los importes nacionales
mínimos de las cuotas que deberán pagar todos los afiliados a la Federación departamental o interdepartamental de cazadores.
Gestionará, en las condiciones establecidas por decreto adoptado en Conseil d'Etat, un fondo denominado Fondo Cinegético Nacional que garantizará, por una parte, un reparto equitativo entre las Federaciones departamentales de cazadores en función de sus recursos y de sus cargas y, por otra, la prevención de los daños causados por la caza mayor y su indemnización por parte de las Federaciones departamentales de cazadores. Este fondo se nutrirá de las contribuciones obligatorias devengadas por las Federaciones departamentales de cazadores así como del importe de una cuota nacional abonada a la Federación Nacional de Cazadores por cada cazador de caza mayor que hubiera validado una licencia de caza nacional.
La Federación Nacional de cazadores redactará una Carta de la Caza en Francia. Ésta expondrá los principios de un desarrollo sostenible de la caza y su contribución a la conservación de la biodiversidad. Este documento establecerá un código de comportamiento del cazador y de las buenas prácticas cinegéticas que cada Federación Departamental de Cazadores y sus afiliados deberán aplicar.
Las Federaciones departamentales e interdepartamentales de cazadores comunicarán cada año a la Federación Nacional el número de sus miembros afiliados en las diferentes categorías para el ejercicio en curso. Se remitirá cada año una copia del fichero citado en el artículo L.423-4 a la Federación Nacional de Cazadores.
Artículo L421-15 (Ley nº 2003-698 de 30 de julio de 2003 art. 21 Diario Oficial de 31 de julio de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 173 V Diario Oficial de 27 de julio de 2005 con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los estatutos de la Federación Nacional de Cazadores deberán ajustarse al modelo adoptado por el Ministro competente en materia de caza y el Ministro de Agricultura.
La Federación Nacional de Cazadores designará, en las condiciones previstas en el artículo L. 612-3 del Código de Comercio, a un auditor de cuentas que ejercerá sus funciones con arreglo a las condiciones previstas en este artículo.
El informe especial mencionado en el tercer párrafo del artículo L. 612-3 del Código de Comercio será remitido por el auditor de cuentas al Ministro competente en materia de caza.
Artículo L421-16 (Introducido por la Ley nº 2003-698 de 30 de julio de 2003 art. 21 Diario Oficial de 31 de julio de 2003)
El Ministro competente en materia de caza controlará la ejecución de las misiones de servicio público en las que participa la Federación Nacional de Cazadores. Se dará traslado a dicho ministro de los acuerdos de la Asamblea
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CÓDIGO DE MEDIO AMBIENTE General, del informe anual del auditor de cuentas y de las cuentas anuales.
El presupuesto de la Federación será ejecutable de pleno derecho tras haber sido remitido al Ministro competente en materia de caza. Si, tras haber recabado las observaciones del Presidente de la Federación Nacional, dicho Ministro comprobara que el presupuesto aprobado no permite asegurar el funcionamiento del fondo de reparte equitativo, el mismo procederá a la asignación de oficio al presupuesto de los ingresos y gastos necesarios.
Artículo L421-17 (Ley nº 2003-698 de 30 de julio de 2003 art. 21 Diario Oficial de 31 de julio de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 173 V Diario Oficial de 27 de julio de 2005 con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de aplicación de las disposiciones del tercer párrafo del artículo L. 612-3 del Código de Comercio o de incumplimiento grave y persistente comprobado tras un procedimiento contradictorio por parte de una Federación Nacional, de su misión de gestión del fondo mencionado en el artículo L. 421-14 del presente Código, el Ministro competente en materia de caza comunicará sus observaciones a la Cour des Comptes. Si la Cour des Comptes comprobara que la Federación Nacional no ha tomado medidas suficientes para restablecer las condiciones normales de funcionamiento, pedirá al Ministro que se encargue de su administración o de la gestión de oficio de su presupuesto hasta su ejecución.
Artículo L421-18 (Introducido por la Ley nº 2003-698 de 30 de julio de 2003 art. 22 Diario Oficial de 31 de julio de 2003)
La Federación Nacional de Cazadores dispondrá libremente de sus reservas de conformidad con su objeto social.
Sección VIII Disposiciones diversas Artículo L421-19
Artículo L421-19 (Introducido por la Ley nº 2003-698 de 30 de julio de 2003 art. 23 Diario Oficial de 31 de julio de 2003)
Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente capítulo.
Capítulo II Territorio de caza Artículos L422-2 a
L422-1
Artículo L422-1 Nadie tendrá la facultad de cazar en un territorio propiedad de un tercero sin el consentimiento del propietario o de
sus derechohabientes.
Sección I Asociaciones municipales e intermunicipales de caza autorizadas Artículos L422-2 a
L422-26
Subsección 1 Disposiciones generales Artículos L422-2 a
L422-5
Artículo L422-2 (Ley nº 2005-157 de 23 de febrero de 2005 art. 169 Diario Oficial de 24 de febrero de 2005)
Las asociaciones municipales e intermunicipales de caza autorizadas tendrán como objetivo garantizar una buena organización técnica de la caza. Favorecerán en su territorio el desarrollo de las especies de caza y de la fauna silvestre respetando un verdadero equilibrio entre las actividades agrícolas, silvícolas y cinegéticas, la educación cinegética de sus miembros, el control de los animales dañinos y velarán por el cumplimiento de los planes de caza asignándoles los recursos necesarios . Tendrán asimismo por objeto la contribución por parte de los cazadores a la conservación de los hábitats naturales, la fauna y la flora silvestres.
Su actividad se ejercerá dentro del respeto a los predios, cultivos y cosechas, y estará coordinada por la Federación Departamental de Cazadores. Las asociaciones municipales e intermunicipales de caza autorizadas colaborarán con todos los actores del mundo rural.
Artículo L422-3 Las asociaciones serán creadas de conformidad con lo dispuesto en la Ley de 1 de julio de 1901, relativa al
contrato de asociación. Serán autorizadas por el Prefecto.
Artículo L422-4 Solamente podrá existir una asociación municipal autorizada en cada municipio.
Artículo L422-5 Las asociaciones municipales deberán ser creadas en el plazo de un año a partir de la publicación de las órdenes
ministeriales o prefectorales que establezcan o completen la lista de los departamentos o municipios mencionados en los artículos L.422-6 y L.422-7.
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CÓDIGO DE MEDIO AMBIENTE Transcurrido dicho plazo, ninguna sociedad o asociación de caza existente en estos departamentos o municipios
que no esté autorizada por el Prefecto, podrá acogerse a lo dispuesto en la presente sección ni solicitar la denominación de asociación municipal de caza autorizada.
Subsección 2 Institución de las asociaciones municipales de caza autorizadas Artículos L422-6 a
L422-7
Artículo L422-6 La lista de departamentos donde deban crearse asociaciones municipales de caza será establecida por el Ministro
competente en materia de caza, a propuesta de los Prefectos y tras el visto bueno de los Consejos Generales, de las Cámaras Agrarias y de las Federaciones Departamentales de Caza que hubieran sido consultadas.
Artículo L422-7 En departamentos que no sean los mencionados en el artículo L.422-6, la lista de municipios donde se creará una
asociación municipal de caza será establecida por el Prefecto, previa solicitud que demuestre el acuerdo amistoso del 60% de los propietarios que, a su vez, representan el 60% de la superficie del territorio del municipio, siendo válido este acuerdo por un período de al menos cinco años.
En el cálculo de esta proporción no se incluirán los territorios que a fecha del 1 de septiembre de 1963 ya hubieran sido acondicionados para la caza y que tengan superficies superiores a las que se determinan en el artículo L.422-13.
Subsección 3 Procedimientos de constitución Artículos L422-8 a
L422-9
Artículo L422-8 En los municipios donde se tenga que crear una asociación municipal de caza, se llevará a cabo una consulta a
iniciativa del Prefecto, para determinar los terrenos que quedarán bajo la potestad de la asociación municipal de caza mediante aportación de los propietarios o titulares de derechos de caza.
Artículo L422-9 A petición de la asociación municipal, se considerará que estas aportaciones son realizadas de pleno derecho por
un periodo de cinco años renovable, si en el plazo de tres meses a partir del anuncio de la constitución de la asociación municipal, que se publicará mediante edictos en el ayuntamiento y se comunicará por carta certificada con acuse de recibo dirigida a todos los propietarios o titulares de derecho de caza que cumplan las condiciones previstas en el artículo L.422-13, las personas mencionadas en los apartados 3º y 5º del artículo L.422-10 no hubieran comunicado por carta certificada con acuse de recibo su oposición justificada a la aportación de su coto de caza.
Subsección 4 Territorio Artículos L422-10 a
L422-20
Artículo L422-10 La asociación municipal no incluirá dentro de su ámbito los terrenos: 1° Situados en un radio de 150 metros alrededor de cualquier vivienda; 2° Rodeados de un cercado tal como se define en el artículo L.424-3; 3° Que hayan sido objeto de oposición por parte de los propietarios o titulares de derechos de caza en superficies
de una sola finca superiores a las superficies mínimas mencionadas en el artículo L.422-13; 4° Que formen parte del dominio público del Estado, de los departamentos y de los municipios, de los bosques
demaniales o de los terrenos de la Red ferroviaria de Francia y de la Sociedad Nacional de Ferrocarriles Franceses; 5° Que hayan sido objeto de oposición por parte de los propietarios o del conjunto de copropietarios indivisos que,
alegando convicciones personales contrarias a la práctica de la caza, prohiban incluso para sí mismos el ejercicio de la caza en sus propiedades, sin perjuicio de las consecuencias que conlleva la responsabilidad del propietario, especialmente por los daños que pudieran causar los animales procedentes de sus predios.
Cuando el propietario fuera una persona jurídica, la oposición podrá ser formulada por el representante del órgano deliberante.
Artículo L422-11 En los bosques demaniales, y por excepción a lo dispuesto en el artículo L.422-10, por decisión de la autoridad
competente podrán ser arrendados determinados terrenos a la asociación municipal o intermunicipaL.Los demás terrenos que formen parte del dominio privado del Estado podrán quedar excluidos del ámbito de aplicación de la presente sección, cualquiera que fuera la superficie de los mismos, por decisión de la autoridad competente.
Artículo L422-12 A petición de los propietarios o titulares del derecho de caza, la asociación podrá incluir en su zona los territorios
que dependan de propiedades limítrofes, a condición de que estas superficies no invadan la sociedad vecina en más de una décima parte de su extensión.
Artículo L422-13
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CÓDIGO DE MEDIO AMBIENTE I. - Para que pueda ser admitida, la oposición de los propietarios o titulares de derechos de caza mencionados en
el apartado 3º del artículo L.422-10 tendrá referirse a terrenos de un solo propietario y con una superficie mínima de veinte hectáreas.
II. - Este mínimo será rebajado para la caza de aves acuáticas: 1° A tres hectáreas para las zonas pantanosas sin desecar; 2° A una hectárea para los estanques aislados; 3° A cincuenta áreas para los estanques para los que a fecha de 1 de septiembre de 1963 existían puestos fijos,
puestos camuflados de caza y puestos de caza de aves acuáticas. III. - Este mínimo será rebajado para la caza de aves de la familia Columbidae a una hectárea en los terrenos en
los que a fecha de 1 de septiembre de 1963 existían puestos fijos destinados a esta caza. IV. - Este mínimo será fijado en cien hectáreas para los terrenos situados en montaña por encima del límite de la
vegetación forestal. V. - Mediante órdenes dictadas por cada departamento en las condiciones previstas en el artículo L.422-6, se
podrán aumentar las superficies mínimas. Los aumentos no podrán exceder del doble de los mínimos fijados.
Artículo L422-14 (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 XI Diario Oficial de 24 de febrero de 2005)
La oposición mencionada en el apartado 5º del artículo L. 422-10 será admitida siempre que se refiera al conjunto de los terrenos pertenecientes a los propietarios o copropietarios afectados.
Esta oposición tendrá valor de renuncia al ejercicio del derecho de caza en esos terrenos. No obstaculizará la aplicación del artículo L. 415-7 del Código Rural. En este caso, el derecho a cazar del arrendatario conllevará las mismas restricciones que las impuestas por los usos locales que se aplican en los territorios vecinos y que las que se deriven del plan departamental de gestión cinegética citado en la sección 1 del capítulo V del título II del Libro IV.
Artículo L422-15 La persona que hubiera formulado oposición tendrá la obligación de señalizar su terreno para advertir sobre la
prohibición de cazar. El propietario o el titular del derecho de caza que hubiera formulado oposición, estará obligado a proceder u
ordenar que se proceda a la destrucción de los animales dañinos y a la regulación de las especies presentes en su predio que causaran daños.
El paso de los perros sabuesos por territorios amparados por el estatuto de reserva o de oposición en virtud de los apartados 3º y 5º del artículo L.422-10, no podrá considerarse como caza en una reserva o caza en un terreno perteneciente a un tercero, salvo que el cazador hubiera incitado a los perros a hacerlo.
Artículo L422-16 La aportación de los derechos de caza por parte del propietario o titular de los mismos implicará la extinción de
todos los demás derechos de caza, salvo cláusula en contrario.
Artículo L422-17 La aportación dará lugar a una indemnización por cuenta de la asociación, si el propietario hubiera sufrido una
pérdida de ingresos debida a la privación de rentas anteriores. El importe de la indemnización será fijado por el Tribunal competente, al igual que el importe debido por la
asociación al titular del derecho de caza que hubiera efectuado mejoras en el territorio del que tuviera el disfrute cinegético.
Artículo L422-18 La oposición formulada en aplicación de los apartados 3º o 5º del artículo L.422-10 surtirá efecto a la expiración del
período de cinco años en curso, siempre que hubiera sido notificada seis meses antes del final de este periodo. En su defecto, surtirá efecto a la expiración del período siguiente. La persona que la formule la notificará al Prefecto.
En este caso, la asociación podrá reclamarle una indemnización que será fijada por el Tribunal competente, correspondiente al valor de las mejoras efectuadas por la misma.
Artículo L422-19 Cuando un terreno que hubiera sido excluido del territorio de la asociación municipal en aplicación del apartado 5º
del artículo L.422-10 cambiara de propietario, el nuevo propietario podrá mantener la oposición alegando sus convicciones personales en el plazo de seis meses a partir de la fecha de cambio de propietario. En su defecto, ese terreno será incorporado al territorio de la asociación.
Artículo L422-20 En la caza organizada, como por ejemplo la practicada por las sociedades municipales, y en la caza privada, el
derecho a cazar en los enclaves de superficie inferior a los mínimos fijados en el artículo L.422-13 tendrá que ser obligatoriamente cedido a la Federación de Cazadores y ésta, mediante intercambio, acuerdo o arrendamiento, tendrá que cederlo al titular del derecho de caza en cuyo territorio se encontrara estos enclaves o dejarlo en reserva.
Subsección 5 Disposiciones obligatorias de los estatutos de las asociaciones
municipales de caza autorizadas Artículos L422-21 a L422-22
Artículo L422-21
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CÓDIGO DE MEDIO AMBIENTE (Ley nº 2001-602 de 9 de julio de 2001 art. 64 Diario Oficial de 11 de julio de 2001) (Ley nº 2003-698 de 30 de julio de 2003 art. 24 Diario Oficial de 31 de julio de 2003)
I. - Los estatutos de cada asociación tendrán que prever la admisión en su seno de los titulares de la licencia de caza validada:
1° Que estuvieran domiciliados en el municipio o tengan una residencia por la que figuraran en la lista de una de las cuatro contribuciones directas, el año de su admisión y por un periodo de cuatro años consecutivos e ininterrumpidos;
2° Que fueran propietarios o titulares de derechos de caza y hubieran aportado sus derechos de caza, o cuando fueran titulares de una licencia de caza, sus cónyuges, ascendientes y descendientes, yernos y nueras del o de los cónyuges que hubieran aportado dichos derechos;
2°bis Que hubieran aportado sus derechos de caza correspondientes a una o varias parcelas con anterioridad a la transmisión de la propiedad de las mismas a una agrupación forestal, o cuando fueran titulares de una licencia de caza, sus cónyuges, ascendientes y descendientes, yernos y nueras del o de los cónyuges que hubieran aportado dichos derechos;
3° Que fueran arrendatarios de un terreno rústico, cuando el propietario hubiera procedido a la aportación de su derecho de caza;
4° Que fueran propietarios de un terreno sujeto a la potestad de la asociación en virtud de herencia o donación entre herederos durante un período de cinco años.
II. - Dichos estatutos deberán contemplar igualmente el número mínimo de miembros de la asociación y la admisión de un porcentaje mínimo de cazadores que no pertenezcan a ninguna de las categorías definidas anteriormente.
III. - Salvo que hubiera manifestado su oposición a la práctica de la caza en las condiciones establecidas en el apartado 5º del artículo L.422-10, el propietario que no fuera cazador y cuyos terrenos estuvieran incorporados al territorio de la asociación será miembro de la asociación, a instancia suya y de forma gratuita, sin tener que contribuir a la eventual cobertura del déficit de la asociación. La asociación realizará ante él todas las gestiones que fueren necesarias.
IV. - El propietario o el titular de derechos de caza que hubiera ejercido un derecho de oposición no podrá solicitar ser miembro de la asociación, salvo decisión discrecional de la asociación municipal de caza autorizada.
V. - Además de las disposiciones enumeradas anteriormente, los estatutos de cada asociación tendrán que contener determinadas cláusulas obligatorias establecidas por decreto adoptado en Conseil d'Etat.
Artículo L422-22 La calidad de miembro de una asociación municipal de caza conferirá el derecho de caza en todo el coto de caza
de la asociación, de conformidad con su reglamento.
Subsección 6 Reservas y guardería Artículo L422-23
Artículo L422-23 Las asociaciones municipales e intermunicipales de caza autorizadas tendrán que constituir una o varias reservas
de caza municipales o intermunicipales. La superficie mínima de las reservas será de una décima parta de la superficie total del territorio de la asociación.
Subsección 7 Asociaciones intermunicipales de caza autorizadas Artículo L422-24
Artículo L422-24 Las asociaciones municipales de caza autorizadas podrán constituir una o varias asociaciones intermunicipales de
caza autorizadas, con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Subsección 8 Disposiciones diversas Artículos L422-25 a
L422-26
Artículo L422-25 Las asociaciones municipales o intermunicipales de caza estarán exentas del pago de tasas por el uso del coto de
caza.
Artículo L422-26 Un decreto adoptado en Conseil d'Etat precisará las condiciones de aplicación de la presente sección.
Sección II Reservas de caza Artículo L422-27
Artículo L422-27 (Ley nº 2002-92 de 22 de enero de 2002 art. 24 XII Diario Oficial de 23 de enero de 2002) (Ley nº 2005-157 de 23 de febrero de 2005 art. 164 Diario Oficial de 24 de febrero de 2005)
Las reservas de caza y fauna silvestre tendrán por objeto: - la protección de las poblaciones de aves migratorias, de conformidad con los compromisos internacionales;
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CÓDIGO DE MEDIO AMBIENTE - la protección de los medios naturales indispensables para la conservación de las especies amenazadas; - el desarrollo de herramientas de gestión para la gestión de la fauna silvestre y sus hábitats; - la contribución a la gestión sostenible de la caza en los territorios rurales. Dichas reservas serán creadas por la autoridad administrativa, por iniciativa del titular del derecho de caza o de la
federación departamental o interdepartamental de cazadores cuando el objetivo sea el de promover acciones de interés general.
Las reservas nacionales de caza y fauna silvestre se organizarán en una red nacional bajo la responsabilidad de la Oficina Nacional de Caza y Fauna Silvestre y de la Federación Nacional de Cazadores.
Las otras reservas se organizarán en redes departamentales cuya coordinación estará a cargo de las federaciones departamentales o interdepartamentales de cazadores.
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de creación y funcionamiento de las reservas de caza. Se determinará, en particular, las condiciones de adopción de las medidas necesarias para prevenir los daños que se pudieran causar a las actividades humanas, para favorecer la protección de los animales de caza y de sus hábitats y para mantener los equilibrios biológicos.
En Córcega, las condiciones de creación y funcionamiento de las reservas de caza serán establecidas por acuerdo de la Asamblea de Córcega.
Sección III Caza marítima Artículo L422-28
Artículo L422-28 I. - Se entiende por caza marítima aquella que se practica en: 1° El mar dentro de los límites de las aguas territoriales; 2° Los estanques o lagos, lagunas y embalses de agua salada; 3° La parte de los lagos, lagunas, embalses, ríos, arroyos y canales que fluyen hacia el mar y se encuentra aguas
abajo del límite de salobridad de las aguas; 4° El dominio público marítimo. II. - Tendrá por objeto, en las zonas definidas en el punto I, la persecución, captura o destrucción de las aves y
demás piezas de caza. III. - Estará regida por el presente título.
Sección IV Aprovechamiento de la caza en los terrenos del dominio público del Estado Artículo L422-29
Subsección 1 Aprovechamiento de la caza en los montes de dominio público Artículo L422-29
Artículo L422-29 Tal como se establece en el artículo 137-3 del Código Forestal: "En caso de subasta pública para el arrendamiento del derecho de caza, la autoridad competente en materia de
aprovechamiento de caza podrá otorgar al arrendatario saliente un derecho de prioridad, al precio de la puja más alta, en las condiciones establecidas por decreto adoptado en Conseil d'Etat. "
Capítulo III Licencia de caza Artículos L423-5 a
L423-4
Artículo L423-1 (Ley nº 2005-157 de 23 de febrero de 2005 art. 165 I Diario Oficial de 24 de febrero de 2005)
Nadie podrá practicar la caza si no es titular y portador de una licencia de caza válida. La validez de la licencia de caza estará supeditada, por una parte, al pago de las tasas cinegéticas y de la exacción
parafiscal mencionados en el artículo L. 423-12 y, por la otra, al pago de las cuotas previstas en el artículo L. 423-13 así como de las participaciones contempladas en el artículo L. 426-5 y la cuota nacional citada en el artículo L. 421-14 en el caso de caza mayor.
Artículo L423-2 (Ley nº 2005-157 de 23 de febrero de 2005 art. 165 II, art. 166 VIII Diario Oficial de 24 de febrero de 2005)
No obstante, las personas titulares y portadoras de una autorización de caza podrán practicar la caza en presencia y bajo la responsabilidad civil de un acompañante titular de una licencia de caza desde al menos cinco años y que nunca hubiera sido privado por resolución judicial del derecho a obtener o poseer una licencia de caza. Para la caza a tiro, la persona autorizada y el acompañante sólo podrán disponer de un arma para ambos, en el lugar donde estuvieran practicando la caza.
Con excepción de las personas citadas en el artículo L. 423-25, la autorización de caza será concedida por la autoridad administrativa, gratuitamente, por un año y una única vez por persona, a los menores de edad de más de quince años y a los mayores, siempre que hayan seguido el curso de formación práctica impartido por la federación departamental o interdepartamental de cazadores, con la colaboración de la Oficina Nacional de Caza y Fauna Silvestre.
Los artículos L. 424-4 y L. 424-5 serán aplicables a los titulares de la autorización de caza.
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CÓDIGO DE MEDIO AMBIENTE Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de concesión de la autorización de caza. NOTA: La modificación que implica el punto VIII del artículo 166 de la Ley n° 2005-157 no ha podido efectuarse, al
ser incompatible con la del punto II del artículo 165.
Artículo L423-3 Para la práctica de la caza marítima, los marineros pescadores y los mariscadores asimilados administrativamente
a los primeros, estarán dispensados de la obligación de validar su licencia de caza siempre que estuvieran en posesión de una autorización otorgada gratuitamente por la autoridad administrativa previa presentación de una póliza de seguro expedida en las condiciones establecidas en el presente capítulo.
Artículo L423-4 (Ley nº 2003-698 de 30 de julio de 2003 art. 25 Diario Oficial de 31 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 166 I Diario Oficial de 24 de febrero de 2005)
I. - Se creará un registro central nacional de licencias, validaciones y autorizaciones de caza, el cual estará gestionado por la Federación Nacional de Cazadores bajo el control de la Oficina Nacional de Caza y Fauna Silvestre.
Las Federaciones departamentales e interdepartamentales de cazadores comunicarán todos los años al encargado del registro la lista de sus afiliados que fueran titulares de la licencia de caza, de una validación y de una autorización de caza.
La autoridad judicial informará a la Oficina Nacional de Caza y Fauna Silvestre de las penas impuestas en aplicación de los artículos L. 428-14 y L. 428-15 del presente Código, así como de las retiradas de licencias de caza que hubieran sido decretadas en aplicación de los artículos 131-14 y 131-16 del Código Penal. Deberá asimismo proceder a la inscripción de dichas sanciones en el registro central citado en el párrafo primero. La autoridad administrativa informará a la Oficina Nacional de Caza y Fauna Silvestre y realizará las correspondientes inscripciones en el registro nacional automatizado de personas privadas del derecho de adquisición y tenencia de armas, previsto en el artículo L. 233-6 del Código de Defensa.
II. - Por decreto adoptado en Conseil d'Etat, previo dictamen de la Comisión Nacional de Informática y Libertades, se establecerán las condiciones de aplicación del presente artículo.
Sección I Examen para la expedición de la licencia de caza Artículos L423-5 a
L423-8
Artículo L423-5 (Ley nº 2005-157 de 23 de febrero de 2005 art. 166 II Diario Oficial de 24 de febrero de 2005)
La expedición de la licencia de caza estará supeditada a la superación de un examen. Este examen versará principalmente sobre el conocimiento de la fauna silvestre, la reglamentación de la caza así como las normas de seguridad que se debieran observar en el manejo de las armas, siendo el conocimiento de este manejo el objeto de una evaluación mediante una prueba práctica. Constará de pruebas eliminatorias y estará organizado por el Estado, a través de la Oficina Nacional de Caza y Fauna Silvestre, con la colaboración de las federaciones departamentales e interdepartamentales de cazadores, con arreglo a las condiciones establecidas por vía reglamentaria.
La autoridad administrativa que conociera de un recurso referido a la expedición de una licencia de caza consultará, antes de resolver sobre el mismo, con un jurado que estará compuesto, en su mitad, por representantes del Estado y, en su otra mitad, por representantes de la Federación Departamental de Cazadores.
No obstante, las personas que hubieran obtenido una licencia de caza o una autorización otorgada por la administración de Asuntos Marítimos con anterioridad al 1 de julio de 1976, estarán dispensadas del examen.
Artículo L423-6 (Disposición nº 2000-916 de 19 de septiembre de 2000 anexo Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-157 de 23 de febrero de 2005 art. 166 III Diario Oficial de 24 de febrero de 2005)
La inscripción al examen de la licencia de caza estará supeditada por la presentación a la Oficina de Caza y Fauna Silvestre, por parte del candidato, de un certificado médico que establezca que su estado de salud física y mental es compatible con la tenencia de armas.
Para tomar parte en el examen de la licencia de caza, el candidato pagará un derecho de examen que será fijado por orden conjunta de los Ministros competentes en materia de caza y presupuesto y cuyo importe máximo será de 16 euros.
El montante de estos derechos se asignará a la Oficina Nacional de Caza y Fauna Silvestre y servirá para la organización material del examen.
Artículo L423-7 Estarán obligadas a realizar el examen previsto en el artículo L.423-5, antes de cualquier nueva expedición de una
licencia de caza, las personas: 1° Sancionadas por una resolución judicial de privación temporal del derecho de obtener o de poseer una licencia
de caza; 2° Cuya licencia de caza fuera nula de pleno derecho según lo dispuesto en el artículo L.423-11.
Artículo L423-8 Las Federaciones departamentales de cazadores organizarán la formación de los candidatos a las pruebas
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CÓDIGO DE MEDIO AMBIENTE teóricas y prácticas del examen para la expedición de la licencia de caza. Se pondrán armas de caza a disposición de las personas que participen en las mismas.
Las Federaciones departamentales de cazadores organizarán igualmente cursos de formación dirigidos a las personas titulares de la licencia de caza con miras a profundizar sus conocimientos sobre la fauna silvestre y sobre la reglamentación de la caza y las armas.
Sección II Expedición y validación de la licencia de caza Artículos L423-9 a
L423-26
Subsección 1 Expedición Artículos L423-9 a
L423-11
Artículo L423-9 La autoridad administrativa expedirá la licencia de caza con carácter permanente.
Artículo L423-10 Por la expedición de la licencia de caza, así como por cada duplicado, se cobrará un derecho de timbre cuyo
importe se halla establecido en el artículo 964 del Código General de Impuestos. Las personas dispensadas de la obligación del examen estarán asimismo exentas del pago del derecho de timbre.
Artículo L423-11 (Ley nº 2005-157 de 23 de febrero de 2005 art. 166 IV Diario Oficial de 24 de febrero de 2005)
No se expedirá la licencia de caza: 1° A los menores de edad de menos de dieciséis años; 2° A los mayores de edad bajo tutela, a menos que estuvieran autorizados a practicar la caza por el juez que
hubiera otorgado la tutela; 3° A quienes se hubiese condenado a la privación del derecho al porte de armas; 4° A quienes no hubieran cumplido las condenas fijadas por sentencia por una de las infracciones contempladas en
el presente título; 5° A quienes hubiesen sido condenados a la privación del derecho de residencia en determinados lugares; 6° A quienes no hubieran presentado el certificado médico previsto en el artículo L. 423-6; 7° A quienes hubieran formulado la oposición prevista en el apartado 5º del artículo L. 422-10. 8° A quienes hubieran sido condenados, en virtud del artículo L. 428-14, a la privación del derecho de obtención de
una licencia de caza. 9° A quienes estuvieran inscritos en el registro nacional automatizado de personas privadas del derecho de
adquisición y tenencia de armas previsto en el artículo L. 233-6 del Código de Defensa. El que solicitare la expedición de una licencia de caza deberá declarar que no se halla incurso en ninguna de las
incapacidades o prohibiciones establecidas arriba mencionadas, bajo apercibimiento de incurrir en el delito tipificado en el artículo 441-4 del Código Penal.
La licencia de caza que hubiera sido expedida basándose en una declaración falsa, será nula de pleno derecho. En tal caso, se remitirá la licencia al Prefecto, previa petición éste. Se podrá aplicar las penas previstas para quienes hubieran practicado la caza sin licencia válida.
Subsección 2 Validación de la licencia de caza Artículos L423-12 a
L423-18
Artículo L423-12 (Disposición nº 2003-719 de 1 de agosto de 2003 art. 2 Diario Oficial de 5 de agosto de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 166 IX Diario Oficial de 24 de febrero de 2005)
El pago de una de las tasas cinegéticas previstas en la subsección 3 y de la exacción parafiscal mencionada en el artículo 964 del Código General de Impuestos tendrá valor de validación de la licencia de caza, siempre y cuando el titular de la misma hubiera cumplido las condiciones establecidas en los artículos L. 423-13, L. 423-15 y L. 423-16.
Artículo L423-13 Nadie podrá obtener la validación de la licencia de caza si no fuera miembro de una federación de cazadores y si
no hubiera abonado a la misma las cuotas previstas en los estatutos. Las federaciones de cazadores no podrán denegar la afiliación a una persona que fuera titular de la licencia de caza.
Artículo L423-15 (Ley nº 2005-157 de 23 de febrero de 2005 art. 166 V Diario Oficial de 24 de febrero de 2005)
No se otorgará la validación de la licencia de caza: 1° A los menores de edad no emancipados de más de dieciséis años, a menos que la validación hubiera sido
solicitada para ellos por su padre, su madre o su tutor; 2° A los mayores de edad bajo tutela, a menos que estuvieran autorizados a practicar la caza por el juez que
hubiera otorgado la tutela;
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CÓDIGO DE MEDIO AMBIENTE 3° A quienes se hubiese condenado a la privación del derecho al porte de armas; 4° A quienes no hubieran cumplido las condenas fijadas por sentencia por una de las infracciones contempladas en
el presente título; 5° A quienes hubiesen sido condenados a la privación del derecho de residencia en determinados lugares; 6° A quienes sufrieran una afección médica o una invalidez que represente un peligro para la práctica de la caza y
cuyo listado será establecido por decreto adoptado en Conseil d'Etat; 7° A quienes hubieran formulado la oposición prevista en el apartado 5º del artículo L. 422-10. 8° A quienes hubieran sido condenados, en virtud del artículo L. 428-14, a la privación del derecho o conservar u
obtener una licencia de caza, o a una suspensión en aplicación del artículo L. 428-15; 9° A quienes estuvieran inscritos en el registro nacional automatizado de personas privadas del derecho de
adquisición y tenencia de armas previsto en el artículo L. 233-6 del Código de Defensa. El que solicitare la validación de una licencia de caza deberá declarar que no se halla incurso en ninguna de las
incapacidades o prohibiciones establecidas arriba mencionadas, bajo apercibimiento de incurrir en el delito tipificado en el artículo 441-4 del Código Penal.
La validación de una licencia de caza que hubiera sido otorgada basándose en una declaración falsa, será nula de pleno derecho. En tal caso, se remitirá el documento de validación al Prefecto, previa petición éste. Se podrá aplicar las penas previstas para quienes hubieran practicado la caza sin licencia válida.
En caso de duda sobre la declaración relativa a las afecciones mencionadas en el apartado 6°, el Prefecto podrá exigir un certificado médico.
Artículo L423-16 (Disposición nº 2003-719 de 1 de agosto de 2003 art. 3 Diario Oficial de 5 de agosto de 2003)
Todo cazador deberá haber suscrito una póliza de seguro con una empresa autorizada a practicar en Francia el aseguramiento de los riesgos derivados de la práctica de la caza. Dicha póliza deberá garantizar su responsabilidad civil por una suma ilimitada, sin que su vencimiento fuera oponible a las víctimas o a sus derechohabientes que hubieran sufrido accidentes corporales causados por cualquier acción de caza o por cualquier acción de destrucción de animales dañinos. El seguro tendrá que cubrir también, y en las mismas condiciones, la responsabilidad civil en la que incurriera el cazador por los daños que pudieran causar sus perros.
Artículo L423-17 Cualquier póliza de seguro que cubra la responsabilidad civil de los cazadores incluirá garantías al menos
equivalentes a las que están determinadas en el artículo L.423-16, no obstante cualquier cláusula en contrario.
Artículo L423-18 La licencia dejará de ser válida, y la autoridad administrativa procederá a su retirada, si la póliza de seguro fuera
rescindida o si la garantía prevista en la póliza fuera suspendida por cualquier motivo. La compañía de seguro tendrá que notificar a la autoridad administrativa la rescisión de la póliza o la suspensión
de la garantía. Las penas previstas en el artículo L.428-3 serán aplicadas a toda persona que se negara a entregar su licencia de
caza al agente de la autoridad competente en aplicación de lo dispuesto en el presente artículo.
Subsección 3 Modalidades de validación de la licencia de caza Artículos L423-19 a
L432-21-1
Artículo L423-19 La validación de la licencia de caza dará lugar al pago anual de una tasa cinegética departamental o nacional. Para obtener la validación departamental de la licencia de caza, el solicitante tendrá que ser miembro de la
federación de cazadores correspondiente.
Artículo L423-20 (Ley nº 2005-157 de 23 de febrero de 2005 art. 166 VI Diario Oficial de 24 de febrero de 2005)
La licencia de caza podrá ser validada por un período de nueve días consecutivos. Dicha validación estará supeditada al pago de una tasa cinegética y de una cuota federal por un periodo determinado. Sólo podrá ser obtenida una vez en el transcurso de una misma campaña cinegética.
La licencia de caza podrá asimismo ser validada por un período de tres días consecutivos. Dicha validación podrá ser renovada dos veces en el transcurso de una misma campaña cinegética y estará supeditada al pago de una tasa cinegética y de una cuota federal por un periodo determinado.
Estas dos modalidades de validación a título temporal no serán compatibles entre sí.
Artículo L423-21 (Ley nº 2005-157 de 23 de febrero de 2005 art. 166 VII Diario Oficial de 24 de febrero de 2005)
La práctica de la caza en Francia por no residentes, franceses o extranjeros, que fueran titulares de licencias de caza expedidas en el extranjero o de cualquier otro documento administrativo equivalente, estará supeditada a la validación de dichos documentos en las mismas condiciones que las establecidas para las licencias de caza expedidas en Francia.
Artículo L432-21-1
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CÓDIGO DE MEDIO AMBIENTE (Ley nº 2000-1353 de 30 de diciembre de 2000 de finanzas rectificativa art. 47 I, II Diario Oficial de 31 de diciembre de 2000 con entrada en vigor el 27 de julio de 2000) (Ley nº 2000-1353 de 30 de diciembre de 2000 de finanzas rectificativa art. 47 III Diario Oficial de 31 de diciembre de 2000 con entrada en vigor el 1 de enero de 2002) (Disposición nº 2003-719 de 1 de agosto de 2003 art. 4 Diario Oficial de 5 de agosto de 2003)
Una Orden conjunta del Ministro competente en materia de caza y del Ministro competente en materia del presupuesto establecerá el importe de las tasas cinegéticas, dentro de los límites máximos siguientes:
Tasa cinegética nacional: 194 euros Tasa cinegética nacional temporal: 116 euros Tasa cinegética departamental: 38 euros Tasa cinegética departamental temporal: 23 euros Tasa cinegética aves acuáticas: 15 euros Las tasas cinegéticas serán cobradas por un contable del Tesoro o un administrador de ingresos públicos
nombrado a estos efectos ante una Federación departamental o interdepartamental de cazadores, con arreglo a las normas y garantías aplicables en materia de derechos de timbre.
Subsección 5 Permisos Artículo L423-22
Artículo L423-22 Los ciudadanos franceses que residieran en el extranjero y los extranjeros no residentes estarán autorizados a
practicar la caza, siempre y cuando fueran titulares y portadores de un permiso de caza expedido por un período de nueve días consecutivos, el cual podrá ser renovado tres veces en un año por la autoridad administrativa previa presentación del certificado de seguro mencionado en el artículo L.423-16 y de la licencia de caza expedida en Francia o en su país de residencia, o previa presentación de cualquier otro documento equivalente.
La expedición de este permiso de caza dará lugar al abono de la tasa cinegética departamental o nacional temporal o de una cuota federal temporal.
Subsección 6 Denegación y exclusiones Artículos L423-23 a
L423-25
Artículo L423-23 No se concederá la validación anual de la licencia de caza: 1° A los menores de dieciséis años; 2° A los menores de edad no emancipados de más de dieciséis años, a menos que la validación hubiera sido
solicitada para ellos por su padre, su madre o su tutor; 3° A los mayores de edad bajo tutela, a menos que estuvieran autorizados a practicar la caza por el juez tutelar.
Artículo L423-24 No se expedirá ni se concederá la validación anual de la licencia de caza: 1° A quienes estuvieran privados del derecho al porte de armas a consecuencia de una condena; 2° A quienes no hubieran cumplido las condenas fijadas por sentencia por una de las infracciones contempladas en
el presente título; 3° A cualquier condenado en situación de prohibición de residencia; 4° A toda persona que sufriera una afección médica o una invalidez que represente un peligro para la práctica de la
caza y cuya lista será establecida por decreto adoptado en Conseil d'Etat; 5° A las personas que hubieran formulado la oposición prevista en el apartado 5º del artículo L.422-10.
Artículo L423-25 I. - Se podrá denegar la expedición de la licencia de caza y retirar su validación: 1° A toda persona que hubiera sido privada, por sentencia judicial, de alguno de los derechos enumerados en el
artículo 131-26 del Código Penal; 2° A toda persona que hubiera sido condenada a pena de prisión de más de seis meses por delito de rebelión o
violencia contra los agentes de la autoridad pública; 3° A toda persona que hubiera sido condenada por delito de asociación ilícita, fabricación, puesta en circulación y
distribución de pólvora, armas u otras municiones de guerra; a toda persona que hubiera sido condenada por delito de amenaza escrita o verbal y coacción; a toda persona que hubiera sido condenada por obstaculizar la libre circulación de semillas; a toda persona que hubiera sido condenada por delito de devastación de árboles o cosechas sin recoger y de plantas crecidas de forma natural o trasplantadas por el hombre;
4° A quienes hayan sido condenados por robo, estafa o abuso de confianza. II. - La facultad de denegar la expedición o de retirar la validación de la licencia de caza a quienes hubieran sido
condenados en virtud de lo dispuesto en los apartados 2º, 3º y 4º del punto I dejará de tener efecto pasados cinco años de la expiración de la pena.
Subsección 7 Disposiciones aplicables a determinados agentes Artículo L423-26
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CÓDIGO DE MEDIO AMBIENTE Artículo L423-26
En interés de la policía de caza o del servicio, el Prefecto podrá acordar las limitaciones que estimara necesarias al ejercicio de la caza por medio de los agentes mencionados en los apartados 1º y 2º del punto I del artículo L.428-20.
Sección III Destino de las tasas cinegéticas Artículo L423-27
Artículo L423-27 (Ley nº 2005-157 de 23 de febrero de 2005 art. 166 VIII Diario Oficial de 24 de febrero de 2005)
El importe de las tasas mencionadas en el artículo L. 423-19 será abonado a la Oficina Nacional de Caza y Fauna Silvestre para ser destinado a la financiación de sus gastos.
Capítulo IV Práctica de la caza Artículos L424-1 a
L424-16
Sección I Protección de las piezas de caza Artículo L424-1
Artículo L424-1 Sin perjuicio del derecho de destrucción de animales salvajes contemplado en el artículo L.427-9, el Ministro
competente en materia de caza dictará órdenes para: - prevenir la destrucción o favorecer la repoblación de las aves y de cualquier especie de caza; - aplazar la fecha de la limpieza del rastrojo de cualquier terreno de uso agrícola a fin de prevenir la destrucción o
de favorecer la repoblación de las especies de caza.
Sección II Temporada de caza Artículos L424-2 a
L424-3
Artículo L424-2 (Ley nº 2001-602 de 9 de julio de 2001 art. 5 Diario Oficial de 11 de julio de 2001) (Ley nº 2003-698 de 30 de julio de 2003 art. 27 Diario Oficial de 31 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 XI Diario Oficial de 24 de febrero de 2005)
No se podrá cazar fuera de los períodos hábiles de caza fijados por la autoridad administrativa con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
No se podrá cazar aves durante el período de nidificación ni durante las diferentes fases de reproducción y crianza. Tampoco se podrá cazar aves migratorias durante su trayecto de vuelta hacia el lugar de nidificación.
No obstante, en condiciones estrictamente controladas y de manera selectiva, se podrán hacer excepciones a fin de posibilitar la captura, retención o cualquier otro aprovechamiento racional de determinadas aves migratorias terrestres y acuáticas en número reducido, con arreglo a lo dispuesto en el artículo L. 425-14.
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación de esta disposición.
Artículo L424-3 (Ley nº 2005-157 de 23 de febrero de 2005 art. 167 I Diario Oficial de 24 de febrero de 2005)
I. Sin embargo, el propietario o titular podrá, en cualquier período, practicar o solicitar que se practique la caza de pelo en los terrenos colindantes con una vivienda y rodeados de un cercado continuo y constante cuyo fin sea obstaculizar la comunicación con las heredades vecinas e impedir totalmente el acceso a animales y personas.
En tal caso, no será de aplicación lo dispuesto en los artículos L. 425-4 a L. 425-14, ni se deberá pagar la contribución financiera destinada a la indemnización por los daños causados por la caza prevista en el artículo L. 426-5.
II. - Los establecimientos profesionales de caza de carácter comercial podrán estar formados por territorios abiertos o cerrados en el sentido del punto I del presente artículo. Les conferirá dicha calidad su inscripción en el Registro de Comercio o en el régimen agrícola. Su actividad estará sujeta a declaración en la Prefectura del departamento y dará lugar al mantenimiento de un registro.
Por orden del Ministro competente en materia de caza, se fijarán las fechas de caza de las aves de cría en dichos establecimientos.
Sección III Métodos y medios de caza Artículos L424-4 a
L424-7
Artículo L424-4 (Ley nº 2005-157 de 23 de febrero de 2005 art. 167 II Diario Oficial de 24 de febrero de 2005)
Durante el período hábil de caza, la licencia facultará a su titular practicar la caza de día, tanto la caza a tiro, la montería, la caza "a toque de cuernos" y "a voces", como la caza al vuelo, con arreglo a las modalidades establecidas por orden del Ministro competente en materia de caza. Se considerará que el día es el período de tiempo que empieza una hora antes de la salida del sol y termina una hora después de su puesta.
Asimismo, le facultará a cazar aves acuáticas al paso, a partir de dos horas antes de la hora de la salida del sol y
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CÓDIGO DE MEDIO AMBIENTE hasta dos horas después de su puesta, en los lugares mencionados en el artículo L. 424-6..
A fin de posibilitar, en condiciones estrictamente controladas y de manera selectiva la caza de determinadas aves de paso en número reducido, el Ministro competente en materia de caza determinará las condiciones de utilización de los métodos y medios de caza consagrados por los usos tradicionales y que constituyan una excepción a los autorizados por el párrafo primero.
Se prohibirán todos los medios de asistencia electrónica para practicar la caza que no hubieran sido autorizados por orden ministerial.
En la caza con liga, las varetas deberán colocarse una hora antes de la salida del sol y retirarse antes de las once de la mañana.
Se prohibirán todos los demás medios de caza, incluidos el avión y el automóvil, aunque sean como medios para ojear la caza.
No obstante, estará autorizado el desplazamiento en vehículo a motor de un puesto de tiro a otro siempre que la acción de cazar haya terminado y que el arma para disparar se encuentre desmontada o guardada dentro de su funda.
Por excepción a lo dispuesto en el párrafo anterior, en la caza con perros sabuesos se podrá autorizar el desplazamiento en vehículo a motor de un puesto de tiro a otro, con arreglo a las condiciones establecidas por el plan departamental de gestión cinegética, siempre que el arma para disparar se encuentre desmontada o guardada dentro de su funda.
Las personas con discapacidad motriz estarán autorizadas a utilizar un vehículo a motor para ir a su puesto de tiro. Sólo podrán comenzar el tiro desde su vehículo tras haber parado el motor.
Artículo L424-5 (Ley nº 2003-698 de 30 de julio de 2003 art. 28, art. 29, art. 31 Diario Oficial de 31 de julio de 2003)
Durante el período hábil de caza, la licencia de caza facultará asimismo a su titular a cazar aves acuáticas por la noche a partir de puestos fijos, como son los chozos de caza, los puestos camuflados, los refugios y los puestos de caza de aves acuáticas que existieran a 1 de enero de 2000 en los departamentos donde esta práctica es tradicionaL.Estos departamentos son: Aisne, Ardenas, Aube, Aude, Bouches-du-Rhône, Calvados, Charente Marítimo, Côtes-d'Armor, Eure, Finisterre, Alto Garona, Gironda, Hérault, Ille y Vilaine, Landas, Mancha, Marne, Meuse, Norte, Oise, Orne, Paso de Calais, Pirineos Atlánticos, Altos Pirineos, Sena Marítmo, Sena y Marne, Somme.
El desplazamiento de un puesto fijo estará sujeto a autorización del Prefecto. No obstante, para los chozos de caza, estará sujeto a autorización solamente el cambio de parcela o de lote de caza.
Todo propietario de un puesto fijo citado en el párrafo primero tendrá que declarar el mismo a la autoridad administrativa, la cual le expedirá un recibo. Los cazadores deberán llevar consigo este recibo cuando practiquen la caza por la noche desde dicho puesto fijo.
La declaración de un puesto fijo obligará a su propietario a participar, con arreglo a las condiciones previstas en el plan departamental de valorización cinegética, en la conservación de los lagos, lagunas y embalses así como de las parcelas contiguas a zonas pantanosas y prados húmedos en los que la caza de las aves acuáticas se practique a partir de dicho puesto. Cuando varios propietarios posean puestos fijos que permitan la práctica de la caza de aves acuáticas en los mismos lagos, lagunas o embalses, serán responsables solidarios de su participación en la conservación de estos lagos, lagunas o embalses y de las zonas húmedas contiguas.
En cada puesto fijo mencionado en el párrafo primero se llevará una hoja de registro de las capturas.
Artículo L424-6 (Ley nº 2005-157 de 23 de febrero de 2005 art. 167 III Diario Oficial de 24 de febrero de 2005)
Durante el período hábil de caza, antes de la apertura y después del cierre general, sólo se podrá cazar las especies de aves acuáticas:
1° En las zonas de caza marítima; 2° En las zonas pantanosas sin desecar; 3° En los ríos, arroyos, canales, embalses, lagos, estanques y balsas de agua. La búsqueda y el tiro de estas
piezas sólo estarán autorizados desde una distancia máxima de treinta metros desde el borde del agua, siempre y cuando se disponga del derecho de caza en la misma.
Artículo L424-7 Nadie podrá poseer o ser encontrado en posesión, fuera de su domicilio, de redes, artilugios u otros instrumentos
de caza prohibidos.
Sección IV Comercialización y transporte de las piezas de caza Artículos L424-8 a
L424-13
Subsección 1 Prohibición permanente Artículos L424-8 a
L424-11
Artículo L424-8 (Ley nº 2005-157 de 23 de febrero de 2005 art. 167 IV Diario Oficial de 24 de febrero de 2005)
I. - El transporte, la venta, la oferta, la posesión para la venta o la compra de animales vivos de especies cuya caza esté autorizada o de animales muertos cazados legalmente, estarán:
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CÓDIGO DE MEDIO AMBIENTE 1° Autorizados durante todo el año en lo que respecta a los mamíferos; 2° Prohibidos en lo que respecta a las aves y sus huevos, excepto para: - su transporte con fines no comerciales, incluyendo el de reclamos vivos y escapes; - las especies cuyo listado será establecido por orden del Ministro competente en materia de caza. II. - No obstante, la autoridad administrativa podrá imponer restricciones a dichas disposiciones para prevenir la
destrucción o favorecer la repoblación de las especies de caza. III. - Se autorizará durante todo el año el transporte, la venta, la oferta, la posesión para la venta y la compra de
animales vivos o muertos de especies cuya caza esté autorizada y hayan nacido o hayan sido criados en explotación. IV. - No obstante lo dispuesto en los puntos I y III, se autorizará la venta, el transporte para la venta, la oferta, la
posesión para la venta y la compra de animales muertos, cazados legalmente o procedentes de las explotaciones mencionadas en el punto III, siempre que se respeten las normas de trazabilidad de los productos establecidas en los artículos L. 232-1, L. 232-1-1, L. 232-2 y L. 232-3 del Código Rural, y siempre que los animales hayan sido previamente sometidos a la inspección sanitaria prevista por los artículos L. 231-1, L. 231-2 y L. 231-3 del mismo Código.
V. - Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente artículo.
Artículo L424-9 (Ley nº 2005-157 de 23 de febrero de 2005 art. 167 V Diario Oficial de 24 de febrero de 2005)
Cuando un animal de caza mayor resultara muerto accidentalmente como consecuencia de una colisión con un automóvil, el conductor del mismo podrá transportarlo siempre que informe de ello previamente a los servicios de Gendarmería de lugar o de Policía Nacional.
Artículo L424-10 (Ley nº 2005-157 de 23 de febrero de 2005 art. 167 VI Diario Oficial de 24 de febrero de 2005)
Estará prohibido destruir, sustraer o dañar de modo intencionado nidos y huevos, así como recoger huevos de aves silvestres y poseerlos. Estará prohibido destruir, sustraer, vender, comprar y transportar las crías o camadas de aquellos mamíferos cuya caza esté autorizada, sin perjuicio de las disposiciones relativas a animales dañinos.
Los titulares del derecho de caza y sus mandatarios tendrán la facultad de recoger los huevos que hubieran quedado al descubierto por la siega y la recolección de las cosechas para ponerlos a empollar.
Artículo L424-11 (Ley nº 2005-157 de 23 de febrero de 2005 art. 167 VII Diario Oficial de 24 de febrero de 2005)
La introducción en el medio natural de animales de caza mayor y de conejos, así como la captura en el medio natural de animales vivos de especies cuya caza estuviera autorizada, estarán sujetas a autorización prefectoral, con arreglo a las condiciones y procedimientos establecidos por orden conjunta del Ministro competente en materia de caza y del Ministro de Agricultura.
Subsección 2 Prohibición temporal Artículos L424-12 a
L424-13
Artículo L424-12 En cada departamento, durante la temporada hábil de caza y a fin de salvaguardar determinadas especies
particularmente amenazadas, el Prefecto podrá, de manera excepcional y por un período no superior a un mes, prohibir la oferta, venta, compra, transporte con fines de venta y la venta ambulante de la caza.
Artículo L424-13 Para asegurar la supervivencia de determinadas especies de animales de montaña en peligro de extinción, el
Ministro competente en materia de caza, previo dictamen del Consejo Nacional de la Caza y de la Fauna Silvestre, podrá prohibir totalmente por un período máximo de tres años la oferta, la venta y la compra en todas sus formas, y principalmente en las formas de patés y conservas, el transporte con fines de venta y la venta ambulante de estos animales de caza.
Sección V Disposiciones especiales para la caza marítima Artículo L424-14
Artículo L424-14 En materia de caza marítima, un decreto adoptado en Conseil d'Etat definirá las autoridades que son competentes
para ejercer las facultades definidas en los artículos L.424-1 y L.424-4.
Sección VI Normas de seguridad Artículos L424-15 a
L424-16
Artículo L424-15 Se deberán cumplir normas que garanticen la seguridad de los cazadores y de las terceras personas en el
desarrollo de toda acción de caza o destrucción de animales dañinos, especialmente cuando se practique con armas de fuego.
Artículo L424-16
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CÓDIGO DE MEDIO AMBIENTE Las disposiciones de aplicación de la presente sección serán determinadas por decreto adoptado en Conseil d'Etat.
Capítulo V Gestión Artículos L425-1 a
L425-15
Sección I Planes departamentales de gestión cinegética Artículos L425-1 a
L425-3
Artículo L425-1 (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 III Diario Oficial de 24 de febrero de 2005)
Se elaborará un plan de gestión cinegética en cada departamento. Este plan tendrá una validez de seis años renovables. Será elaborado por la Federación Departamental de Cazadores, principalmente en coordinación con la Cámara de Agricultura, representantes de la propiedad privada rural y representantes de los intereses forestales. Tendrá en cuenta el documento departamental de gestión del espacio agrícola y forestal mencionado en el artículo L. 112-1 del Código Rural, así como las orientaciones regionales de gestión y conservación de la fauna silvestre y sus hábitats mencionadas en el artículo L. 414-8 del presente Código. Será aprobado por el Prefecto, quien comprobará su compatibilidad con los principios enunciados en el artículo L. 420-1 y las disposiciones del artículo L. 425-4, previo dictamen de la Comisión Departamental competente en materia de caza o fauna silvestre.
Artículo L425-2 (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 I Diario Oficial de 24 de febrero de 2005) (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 IV Diario Oficial de 24 de febrero de 2005)
El plan departamental de gestión cinegética incluirá en particular: 1° Los planes de caza y los planes de gestión; 2° Las medidas relativas a la seguridad de los cazadores y de los no cazadores; 3° Las acciones a llevar a cabo para mejorar la práctica de la caza, como son la concepción y puesta en práctica
de los planes de gestión aprobados, el número máximo de capturas autorizado, la regulación de los animales predadores y depredadores, las sueltas de piezas de caza, el rastreo de los animales heridos en la caza mayor y las disposiciones relativas a la aportación de granos y de pienso para atraer a los animales, así como a la caza a tiro de aves acuáticas utilizando cebos;
4° Las acciones llevadas a cabo para preservar, proteger mediante medidas adaptadas o restaurar los hábitats naturales de la fauna silvestre;
5° Las disposiciones destinadas a alcanzar un equilibrio entre las actividades agrícolas, silvícolas y cinegéticas.
Artículo L425-3 (Ley nº 2002-92 de 22 de enero de 2002 art. 24 XIII Diario Oficial de 23 de enero de 2002) (Disposición nº 2004-637 de 1 de julio de 2004 art. 29 Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2005) (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 I Diario Oficial de 24 de febrero de 2005) (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 V Diario Oficial de 24 de febrero de 2005)
El plan departamental de gestión cinegética será aplicable a los cazadores y a las sociedades, agrupaciones y asociaciones de caza del departamento.
Sección II Equilibrio entre las actividades agrícola, silvícola y cinegética Artículos L425-5 a
L425-4
Artículo L425-5 (Ley nº 2003-698 de 30 de julio de 2003 art. 32 Diario Oficial de 31 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 I Diario Oficial de 24 de febrero de 2005) (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 VIII Diario Oficial de 24 de febrero de 2005)
La aportación de granos y de pienso para atraer la caza estará autorizada con arreglo a las condiciones definidas por el plan departamental de gestión cinegética.
Artículo L425-4 (Disposición nº 2000-916 de 19 de septiembre de 2000 anexo Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 I Diario Oficial de 24 de febrero de 2005) (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 VIII Diario Oficial de 24 de febrero de 2005)
El equilibrio entre las actividades agrícola, silvícola y cinegética consistirá en compatibilizar la presencia duradera de una fauna silvestre rica y variada con la viabilidad a largo plazo y la rentabilidad económica de las actividades agrícolas y silvícolas.
Dicho equilibrio requerirá una gestión concertada y sostenible de las especies de fauna silvestre y de sus hábitats agrícolas y forestales, de conformidad con los principios enunciados en el artículo L. 420-1.
Para alcanzar este equilibrio, se deberán combinar los diferentes medios siguientes: la caza, la regulación, la
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CÓDIGO DE MEDIO AMBIENTE prevención de los daños causados por los animales de caza mediante la colocación de dispositivos de protección y disuasión, así como, en su caso, mediante procedimientos de destrucción autorizados. La elaboración de prácticas y sistemas de gestión que tengan en cuenta tanto los objetivos de producción de las explotaciones agrícolas y forestales como la presencia de la fauna silvestre contribuirá a alcanzar dicho equilibrio. La indemnización contemplada en el artículo L. 426-1 podrá contribuir a alcanzar dicho equilibrio.
El equilibrio entre las actividades silvícola y cinegética deberá permitir, dentro del territorio forestal en cuestión, la regeneración de las masas forestales en condiciones económicas satisfactorias para el propietario. Tendrá en cuenta los principios enunciados en el artículo L. 1° del Código Forestal, así como lo dispuesto en las orientaciones regionales forestales.
Sección III Plan de caza Artículos L425-6 a
L425-13
Artículo L425-6 (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 168 IX Diario Oficial de 24 de febrero de 2005)
El plan de caza determinará el número mínimo y máximo de piezas que pueden ser capturadas en los cotos de caza. Tendrá como finalidad el desarrollo sostenible de la fauna cinegética y la preservación de sus hábitats naturales.
Será establecido por un periodo de tres años revisable anualmente, previa consulta de los representantes de los intereses agrícolas y forestales, para especies de caza mayor y por un periodo de un año para especies de caza menor.
A fin de asegurar un equilibrio agrícola, silvícola y cinegético, el plan de caza será aplicado en todo el territorio nacional para determinadas especies de animales de caza cuyo listado será establecido por decreto adoptado en Conseil d'Etat. Cuando se trate del jabalí, el plan de caza se establecerá previa consulta con las Federaciones departamentales o interdepartamentales de cazadores.
Artículo L425-7 (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 168 IX Diario Oficial de 24 de febrero de 2005)
El titular del derecho de caza sobre un territorio que desee obtener un plan de caza individual, deberá presentar una solicitud con este fin. No obstante, cuando el contrato de arrendamiento o de puesta a disposición gratuita del derecho de caza lo prevea de forma expresa, la solicitud será presentada por el propietario o su mandatario.
Cuando el titular del derecho de caza no fuera el propietario del territorio para el que se hubiera presentado la solicitud y este último no arrendara su derecho de caza, el titular del derecho de caza deberá informar de su solicitud de obtención del plan de caza individual al propietario del territorio o a su mandatario que lo deseara. Dicho propietario, o su mandatario, podrá manifestar su eventual desacuerdo y realizar su propia solicitud de plan de caza.
Los propietarios mencionados en al párrafo anterior podrán acogerse a lo dispuesto en el artículo L. 247-8 del Código Forestal.
Artículo L425-8 (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 XIV Diario Oficial de 24 de febrero de 2005) (Disposición nº 2004-637 de 1 de julio de 2004 art. 29 Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2005) (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 I Diario Oficial de 24 de febrero de 2005)
El plan de caza, que tendrá en cuenta las líneas de orientación del plan departamental de gestión cinegética, será puesto en práctica por el representante del Estado en el departamento, previo dictamen de la comisión departamental competente en materia de caza y fauna silvestre. Cuando concurran circunstancias excepcionales, se podrá establecer otro plan de caza que sustituya al plan de caza en vigor. En Córcega, este plan será establecido y aplicado por la entidad territorial de Córcega.
Nota: La fecha de entrada en vigor del artículo 29 de la Disposición 2004-637 ha sido modificada por la Disposición 2004-727.
Artículo L425-10 (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 168 IX Diario Oficial de 24 de febrero de 2005)
Cuando el equilibrio entre las actividades agrícola, silvícola y cinegética se viera alterado o amenazado, el prefecto suspenderá la aplicación de las disposiciones del plan de caza y especificará las especies animales pueden ser cazadas, con el fin de restablecer niveles de especies cinegéticas compatibles con dicho equilibrio y en adecuación con los objetivos del plan de caza.
Artículo L425-11 (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 168 IX Diario Oficial de 24 de febrero de 2005)
Cuando el beneficiario del plan no hubiera cazado el número mínimo de animales que tuviera asignado, podrá ser considerado responsable para el pago de la totalidad o parte de la indemnización contemplada en el artículo L. 426-1 y de los gastos relativos a la prevención de los daños causados por los animales de caza mencionada en el artículo L. 421-5.
También será considerado financieramente responsable el que hubiera formulado la oposición prevista en el apartado 5° del artículo L. 422-10 y no hubiera procedido a la regulación de las especies de caza mayor en su predio.
Artículo L425-12
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CÓDIGO DE MEDIO AMBIENTE (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 168 IX Diario Oficial de 24 de febrero de 2005)
Cuando en un territorio forestal gestionado de conformidad con uno de los documentos de gestión citados en el artículo L. 4 del Código Forestal, el equilibrio entre las actividades silvícola y cinegética se viera fuertemente alterado, el beneficiario del derecho de caza que no hubiera cazado el número mínimo de animales asignado por el plan de caza, deberá pagar al propietario que no sea titular del derecho de caza y no haya arrendado dicho derecho, previa solicitud motivada de este:
- bien, el importe de la totalidad o parte de los gastos de protección indispensables que hubiera realizado para garantizar la conservación de las masas forestales;
- o bien, si las masas forestales hubieran sido dañadas de forma significativa por una especie de caza mayor regulada por un plan de caza, una indemnización a tanto alzado cuyo importe por hectárea será fijado por orden prefectoral, previo dictamen de la comisión departamental competente en materia de caza y fauna silvestre, respetando un baremo interministerial definido conjuntamente por el Ministro competente en materia de caza y el competente en materia forestal
Artículo L425-13 (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 168 IX Diario Oficial de 24 de febrero de 2005)
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación de la presente sección.
Sección IV Número máximo de capturas autorizado Artículo L425-14
Artículo L425-14 (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 168 I Diario Oficial de 24 de febrero de 2005)
El Ministro podrá, mediante decreto adoptado en Conseil d'Etat y previa consulta con la Federación Nacional de Cazadores y la Oficina Nacional de Caza y Fauna Silvestre, fijar el número máximo de piezas que un cazador está autorizado a capturar durante un período determinado en un territorio dado.
Con arreglo a las mismas condiciones y a propuesta de la Federación Departamental o Interdepartamental de Cazadores, el Prefecto podrá fijar el número máximo de piezas que un cazador o un grupo de cazadores está autorizado a capturar durante un período determinado en un territorio dado.
Estas disposiciones respetarán las directrices del plan departamental de gestión cinegética.
Sección V Plan de gestión cinegética Artículo L425-15
Artículo L425-15 (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 171 Diario Oficial de 24 de febrero de 2005)
En la orden anual por la que se fija el periodo hábil de caza y previa propuesta de la Federación Departamental o Interdepartamental de Cazadores, el Prefecto podrá incluir las modalidades de gestión de una o varias especies cinegéticas que no formaran parte del plan de caza.
Capítulo VI Indemnización por daños causados por la caza Artículos L426-1 a
L426-8
Sección I Indemnización por parte de las Federaciones departamentales de cazadores
por los daños causados por los jabalíes y la caza mayor Artículos L426-1 a L426-6
Artículo L426-1 (Ley nº 2005-157 de 23 de febrero de 2005 art. 172 I Diario Oficial de 24 de febrero de 2005)
El agricultor que hubiera sufrido daños en sus cultivos o cosechas que hicieran necesaria la reposición de las cosas al estado anterior o supusieran una disminución de sus ingresos, podrá reclamar una indemnización a la Federación Departamental de Cazadores, cuando dichos daños hubieran sido causados por jabalíes u otras especies de caza mayor procedentes bien de una reserva donde éstas fueran objeto de repoblación, bien de un predio donde hubiera sido aplicado un plan de caza.
Artículo L426-2 (Ley nº 2005-157 de 23 de febrero de 2005 art. 172 I Diario Oficial de 24 de febrero de 2005)
No se podrá obtener indemnización alguna por los daños causados por la caza procedente del propio predio.
Artículo L426-3 (Ley nº 2005-157 de 23 de febrero de 2005 art. 172 I Diario Oficial de 24 de febrero de 2005)
La indemnización mencionada en el artículo L. 426-1 será satisfecha únicamente cuando el importe de los daños fuera superior a un mínimo fijado por decreto adoptado en Conseil d'Etat.
En todo caso, la indemnización será objeto de una deducción proporcional fijada por decreto adoptado en Conseil d'Etat.
Además, dicha indemnización podrá ser reducida si se comprobara que la víctima de los daños ha favorecido, mediante cualquier procedimiento, la llegada de las piezas de caza a su predio, en especial procediendo
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CÓDIGO DE MEDIO AMBIENTE reiteradamente a plantar cultivos que puedan atraerlas sin respetar las rotaciones de cultivo que se practican en la región. Lo mismo ocurrirá cuando la víctima de los daños se hubiera negado a hacer uso de los sistemas de prevención propuestos por la Federación Departamental o Interdepartamental de Cazadores.
Cuando el total del perjuicio declarado por el agricultor fuera más de diez veces superior al de la indemnización previa deducción fiscal, se le restarán los gastos derivados de los peritajes.
Artículo L426-4 (Ley nº 2005-157 de 23 de febrero de 2005 art. 172 I Diario Oficial de 24 de febrero de 2005)
La posible indemnización de la Federación Departamental de Cazadores no impedirá la facultad de ejercer contra el responsable de los daños una acción basándose en lo dispuesto en el artículo 1382 del Código Civil.
El que hubiera obtenido judicialmente el pago por daños y perjuicios a cargo del responsable, tendrá que devolver a la Federación Departamental de Cazadores la indemnización abonada por ésta, hasta el límite del importe de dicho pago.
El que hubiera obtenido de mutuo acuerdo con el responsable el pago de los daños sin la aprobación de la Federación Departamental de Cazadores, perderá el derecho a reclamar a ésta una indemnización y tendrá que rembolsar la totalidad de la indemnización que hubiera recibido por parte de la misma.
La Federación Departamental de Cazadores podrá pedir en cualquier momento al responsable de los daños, bien por vía judicial o bien de forma amistosa, que le abone el importe de la indemnización que ella hubiera pagado a la víctima de los daños.
Artículo L426-5 (Ley nº 2005-157 de 23 de febrero de 2005 art. 172 I Diario Oficial de 24 de febrero de 2005) (Disposición nº 2004-637 de 1 de julio de 2004 art. 30 Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2005) (Ley nº 2005-157 de 23 de febrero de 2005 art. 172 I Diario Oficial de 24 de febrero de 2005)
La Federación Departamental de Cazadores tramitará las solicitudes de indemnización y propondrá una indemnización a la parte reclamante con arreglo a un baremo departamental de indemnización. Este baremo será establecido por la comisión departamental competente en materia de caza y fauna silvestre, que fijará, asimismo, el importe de la indemnización en caso de desacuerdo entre la parte reclamante y la Federación Departamental de Cazadores. La Comisión Nacional de Indemnización por los daños causados por la caza fijará anualmente, para los principales bienes y productos, los valores mínimos y máximos que servirán de base para el cálculo de los baremos departamentales. También fijará anualmente, con la misma finalidad, los valores mínimos y máximos de los gastos ocasionados por las actuaciones de reposición de las cosas al estado anterior. Cuando el baremo adoptado por la Comisión Departamental no respetara los valores fijados, se podrá recurrir a la Comisión Nacional de Indemnización, la cual se pronunciará en última instancia. La misma podrá conocer de los recursos de apelación de las decisiones adoptadas por las comisiones departamentales.
La composición de la Comisión Nacional de Indemnización por los daños causados por la caza y la de las comisiones departamentales en materia de caza y fauna silvestre garantizará la representación del Estado y, especialmente de la Oficina Nacional de Caza y Fauna Silvestre, de los cazadores y de los intereses agrícolas y forestales, con arreglo a las condiciones determinadas por decreto adoptado en Conseil d'Etat.
De conformidad con lo establecido en el plan de caza mencionado en el artículo L. 425-6, se instituirá una tasa por animal capturado que deberán abonar los cazadores de ciervos, gamos, musmones, corzos y jabalíes, machos y hembras, jóvenes y adultos, y que estará destinada a garantizar una indemnización suficiente para los agricultores cuyos cultivos hubieran sufrido daños importantes causados por estos animales. El importe de estas tasas será fijado por la asamblea general de la Federación Departamental o Interdepartamental de cazadores, a propuesta del consejo de administración.
Cuando el importe de las tasas mencionadas en el artículo L. 425-4 no fuera suficiente para cubrir el importe de la indemnización por daños, la Federación Departamental o Interdepartamental de Cazadores se hará cargo de la parte restante de la indemnización. Repartirá el importe entre sus afiliados o determinadas categorías de afiliados. Si lo considera necesario, podrá exigir una participación personal de los cazadores de caza mayor y de jabalí, o una participación por cada dispositivo de marcaje de las piezas de caza, o una combinación de ambos tipos de participación. Dichas participaciones podrán variar en función de la especie de caza, del sexo, de la edad y de los cotos de caza o unidades de gestión.
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación de los artículos L. 426-1 a L. 426-4 y del presente artículo.
Nota: La fecha de entrada en vigor del artículo 30 de la Disposición 2004-637 ha sido modificada por la Disposición 2004-727.
Artículo L426-6 (Ley nº 2005-157 de 23 de febrero de 2005 art. 172 I Diario Oficial de 24 de febrero de 2005)
Los litigios derivados de la aplicación de los artículos L. 426-1 a L. 426-4 serán competencia de los tribunales de justicia.
Sección II Indemnización judicial por los daños causados a las cosechas Artículos L426-7 a
L426-8
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CÓDIGO DE MEDIO AMBIENTE Artículo L426-7 (Ley nº 2005-157 de 23 de febrero de 2005 art. 172 II Diario Oficial de 24 de febrero de 2005)
Las acciones de reparación del daño causado a los cultivos y cosechas por la caza prescribirán a los seis meses contados desde el día en que se hubieran producido los daños.
Artículo L426-8 (Ley nº 2005-157 de 23 de febrero de 2005 art. 172 II Diario Oficial de 24 de febrero de 2005)
Las indemnizaciones concedidas a los agricultores por los daños causados a sus cosechas por cualquier pieza de caza no podrán ser reducidas en proporción alguna por motivos de vecindad.
Capítulo VII Destrucción de los animales dañinos y organización de la batida de lobos
(Louveterie) Artículos L427-1 a L427-10
Sección I Medidas administrativas Artículos L427-1 a
L427-7
Subsección 1 Organización de la batida de lobos (Louveterie) Artículos L427-1 a
L427-3
Artículo L427-1 (Ley nº 2005-157 de 23 de febrero de 2005 art. 170, art. 172 III Diario Oficial de 24 de febrero de 2005)
Los tenientes de la organización de la batida de lobos (Louveterie) serán nombrados por la autoridad administrativa y participarán bajo su control en la destrucción de los animales citados en los artículos L. 427-6 y L. 427-8 o, de forma puntual, en las operaciones de regulación de animales que hubiera ordenado. La autoridad competente podrá consultarlos, cuando lo considere necesario, sobre los problemas de gestión de la fauna silvícola.
Artículo L427-2 Los tenientes de la organización de la batida de lobos (Louveterie) prestarán juramento. Estarán facultados para
comprobar las infracciones en materia de policía de caza, dentro de los límites de su circunscripción. En el ejercicio de sus funciones, tendrán que llevar consigo sus credenciales y un distintivo reglamentario
establecido por el Ministro competente en materia de caza.
Artículo L427-3 Una orden del Ministro competente en materia de caza determinará las condiciones de aplicación de la presente
subsección.
Subsección 2 Batidas administrativas Artículos L427-4 a
L427-7
Artículo L427-4 El Alcalde estará encargado, bajo el control administrativo del Prefecto, de aplicar las medidas contempladas en el
artículo L.2122-21 (9º) del Código General de Entidades Territoriales.
Artículo L427-5 Las batidas decididas por los Alcaldes en aplicación del artículo L.2122-21 (9º) del Código General de Entidades
Territoriales, serán organizadas bajo el control y la responsabilidad técnica de los tenientes de la organización de la batida de lobos (Louveterie).
Artículo L427-6 (Decreto nº 2001-450 de 25 de mayo de 2001 art. 1 Diario Oficial de 27 de mayo de 2001) (Ley nº 2005-157 de 23 de febrero de 2005 art. 155, art. 168 XI Diario Oficial de 24 de febrero de 2005)
Sin perjuicio de lo dispuesto en el artículo L. 2122-21 (9º) del Código General de Entidades Territoriales, cada vez que fuera necesario se practicarán cazas y batidas generales o específicas de animales dañinos, por orden del Prefecto, previa consulta con el Director departamental de agricultura y bosques y del Presidente de la Federación Departamental o Interdepartamental de Cazadores. Estas cazas y batidas podrán practicarse con animales de especies sujetas al plan de caza, según lo dispuesto en el artículo L. 425-6. Podrán asimismo ser organizadas en los terrenos mencionados en el apartado 5º del artículo L. 422-20.
Artículo L427-7 (Ley nº 2003-698 de 30 de julio de 2003 art. 7 Diario Oficial de 31 de julio de 2003)
En los municipios cuya lista esté establecida por orden del Prefecto, situados en las proximidades de los macizos forestales donde los cultivos estuvieran amenazados periódicamente de destrucción por los jabalíes y en los que existieran formas de ganadería profesional amenazadas periódicamente de destrucción por zorros, el Prefecto podrá delegar sus poderes a los Alcaldes de los municipios interesados. Las batidas serán organizadas bajo el control y la responsabilidad técnica de los tenientes de la organización de la batida de lobos (Louveterie).
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CÓDIGO DE MEDIO AMBIENTE Sección II Derechos de los particulares Artículos L427-8 a
L427-9
Artículo L427-8 Un decreto adoptado en Conseil d'Etat designará la autoridad administrativa competente para determinar las
especies de animales perjudiciales o dañinos que el propietario, dueño o colono podrá destruir en cualquier momento dentro de sus tierras así como las condiciones para el ejercicio de este derecho.
Artículo L427-9 (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 XI Diario Oficial de 24 de febrero de 2005)
Sin perjuicio de las disposiciones previstas en el artículo L. 427-8, cualquier propietario o granjero podrá espantar o destruir, incluso con armas de fuego pero excluyendo el lazo y la fosa, los animales salvajes que pudieran causar daños en sus propiedades. No obstante, no estará autorizado a matar jabalíes, ni siquiera en los departamentos donde se hubiera instituido un plan de caza en aplicación de la sección 3 del capítulo V del título II del libro IV, así como tampoco las piezas de caza mayor contempladas en dicho plan.
Sección III Comercialización y transporte Artículo L427-10
Artículo L427-10 Un decreto podrá regular la oferta, la venta, la compra, el transporte y la venta ambulante de los animales
clasificados como dañinos y legalmente destruidos en las condiciones previstas en el presente título.
Capítulo VIII Disposiciones penales Artículos L428-1 a
L428-33
Sección I Penas Artículos L428-1 a
L428-3
Subsección 1 Territorio Artículo L428-1
Artículo L428-1 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Será castigado con la pena de tres meses de prisión y una multa de 3.750 euros el que practicare la caza en un territorio propiedad de un tercero sin su consentimiento, siempre que dicho territorio fuera colindante con una casa habitada o sirviera de vivienda y estuviera rodeado de un cercado continuo que impidiera cualquier comunicación con las heredades vecinas.
Si el delito fuera cometido durante la noche, podrá imponerse la pena de dos años de prisión. Será sancionado con la multa prevista para las faltas graves el que practicare la caza en las reservas de caza
aprobadas por el Estado o establecidas en aplicación de lo dispuesto en el artículo L.422-27. Nota: Disposición 2000-914 de 18 de septiembre de 2000 art. 5 III: El párrafo tercero del artículo L428-1 quedará
derogado a partir de la entrada en vigor de la Parte Reglamentaria del Código de Medio Ambiente.
Subsección 2 Licencia de caza Artículos L428-2 a
L428-3
Artículo L428-2 Será castigado con las penas previstas en el artículo 434-41 del Código Penal el que practicare la caza tras haber
sido privado del derecho a obtener o conservar una licencia de caza o una autorización de caza mencionada en el artículo L.423-2 por aplicación del artículo L.428-14, o tras haber recibido notificación de la resolución que ordenara la suspensión de la licencia de caza o de la autorización de caza por aplicación del artículo L.428-15.
Artículo L428-3 I. - Será castigado con las penas previstas en el artículo 434-41 del Código Penal el que se negare a entregar su
licencia o su autorización al agente de la autoridad encargado de la ejecución de una resolución de retirada de la licencia de caza o de la autorización de caza mencionada en el artículo L.423-2 tomada en virtud de lo dispuesto en el artículo L.428-14, o de una resolución de suspensión de la licencia de caza o de la autorización de caza mencionada en el artículo L.423-2 adoptada en virtud de lo dispuesto en el artículo L.428-15.
II. - Será sancionado con la multa prevista para las faltas graves el que practicare la caza en época de veda o durante la noche en condiciones diferentes a las que se mencionan en los artículo L.424-4 y L.424-5.
III. - Será sancionado con la multa prevista para las faltas graves el que: 1° Practicare la caza haciendo uso de artilugios e instrumentos prohibidos, o empleando medios que no son los
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CÓDIGO DE MEDIO AMBIENTE autorizados por los artículos L.424-4 y L.427-8 ;
2° Empleare drogas o cebos con la finalidad de privar a los animales de caza de sus medios naturales de defensa o destruirlos;
3° Poseyere o fuere encontrado en posesión fuera de su domicilio de redes, artilugios u otros instrumentos de caza prohibidos.
IV. - Será sancionado con la multa prevista para las faltas graves el que ofertare, vendiere, comprare, transportare o vendiere de forma ambulante piezas de caza fuera de los períodos autorizados en aplicación de lo dispuesto en el artículo L.424-8.
V. - Será sancionado con la multa prevista para las faltas graves, en cualquier temporada, el que ofertare, vendiere, transportare, vendiere de forma ambulante o comprare a sabiendas piezas de caza a las que se les hubiera dado muerte con artilugios o instrumentos prohibidos.
*Nota: Disposición 2000-914 de 18 de septiembre de 2000 art. 5 III: Los puntos II a V del artículo L428-3 quedarán derogados a partir de la entrada en vigor de la Parte Reglamentaria del Código de Medio Ambiente y el apartado I* quedará suprimido.
Sección II Circunstancias agravantes Artículos L428-4 a
L428-7-1
Artículo L428-4 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-157 de 23 de febrero de 2005 art. 173 I Diario Oficial de 24 de febrero de 2005)
I. - Será castigado con la pena de dos años de prisión y una multa de 30.000 euros el que practicare la caza cuando concurriera alguna de las siguientes circunstancias:
1° Durante la noche o en época de veda ; 2° En terreno de un tercero o en una reserva de caza aprobada por el Estado o establecida en aplicación de lo
dispuesto en el artículo L. 422-27; 3° Haciendo uso de artilugios e instrumentos prohibidos o medios que no fueran los autorizados por los artículos L.
424-4 y L. 427-8, o empleando drogas y cebos con la finalidad de atontar la caza o destruirla; 4° Cuando uno de los cazadores llevara un arma a la vista u oculta. II. - Será castigado con las mismas penas el que ofertare, vendiere, comprare, transportare o vendiere de forma
ambulante piezas de caza fuera de los periodos autorizados según lo dispuesto en el artículo L. 424-8, cuando dichas piezas hubieran sido cazadas en alguna de las circunstancias previstas en los apartados 1°, 2° y 3° del punto I del presente artículo.
III. - Será castigado con las mismas penas el que en cualquier temporada vendiere, ofertare, transportare, vendiere de forma ambulante o comprare a sabiendas piezas de caza a las que se les hubiera dado muerte con artilugios o instrumentos prohibidos y cuando dichas piezas hubieran sido cazadas en alguna de las circunstancias previstas en los apartados 1° o 2° del punto I.
Artículo L428-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-157 de 23 de febrero de 2005 art. 173 I Diario Oficial de 24 de febrero de 2005)
I. - Será castigado con la pena de un año de prisión y una multa de 15.000 euros el que: 1° Practicare la caza en un territorio propiedad de un tercero sin su consentimiento, siempre que dicho territorio
fuera colindante con una casa habitada o sirviera de vivienda y estuviera rodeado de un cercado continuo que impidiera cualquier comunicación con las heredades vecinas;
2° Practicare la caza en las reservas de caza declaradas por el Estado o instituidas en aplicación de lo dispuesto en el artículo L. 422-27;
3° Practicare la caza en época de veda o durante la noche; 4° Practicare la caza haciendo uso de artilugios e instrumentos prohibidos, o empleando medios que no son los
autorizados por los artículos L. 424-4 y L. 427-8 ; 5° Empleare drogas o cebos con la finalidad de atontar la caza o destruirla; 6° Poseyere o fuere encontrado en posesión fuera de su domicilio de redes, artilugios o instrumentos de caza
prohibidos y siempre que concurriera alguna de las siguientes circunstancias: a) Ir disfrazado o enmascarado; b) Haber adoptado una identidad falsa; c) Haber empleado la violencia contra las personas no ocasionando una interrupción total de trabajo u ocasionando
una interrupción total de trabajo inferior a ocho días; d) Haber hecho uso de un avión, un automóvil o de cualquier otro vehículo para desplazarse hasta el lugar de
comisión de la infracción o para alejarse del mismo. II. - Será castigado con las mismas penas el que cometiere una de las siguientes infracciones, siempre que las
piezas hubieran sido cazadas en alguna de las circunstancias previstas en las letras a) a d) del apartado 6° del punto I: 1° Ofertar, vender, comprar, transportar o vender de forma ambulante piezas de caza en época de veda, según lo
dispuesto en el artículo L. 424-8;
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CÓDIGO DE MEDIO AMBIENTE 2° Ofertar, vender, transportar, vender de forma ambulante o comprar a sabiendas piezas de caza a las que se les
hubiera dado muerte con artilugios o instrumentos prohibidos, cualquiera que fuera la temporada. III. - Será castigado con las mismas penas el que cometiere, sin circunstancias agravantes pero de forma
reincidente en el sentido del artículo L. 428-6, alguna de las infracciones previstas en los puntos I y II.
Artículo L428-6 Se considerará que existe reincidencia cuando el inculpado hubiera sido condenado por delito de caza dentro de
un período anterior de doce meses a la infracción sancionada por una de las disposiciones del presente título.
Artículo L428-7 (Ley nº 2001-602 de 9 de julio de 2001 art. 47 Diario Oficial de 11 de julio de 2001) (Ley nº 2005-157 de 23 de febrero de 2005 art. 174 Diario Oficial de 24 de febrero de 2005)
Cuando el infractor no hubiera cumplido las condenas anteriores y existiera reincidencia, se le podrá condenar a una pena de tres meses de prisión por las infracciones relativas a:
1° La práctica de la caza en el territorio de un tercero, el incumplimiento de las normas relativas al aprovechamiento cinegético en los bosques adscritos al régimen forestal y en las propiedades de las entidades y organismos públicos;
2° La ausencia de licencia o autorización de caza válida; 3° La inobservancia de lo establecido en las disposiciones reglamentarias relativas a la destrucción de cualquier
especie cinegética, de sus nidos y huevos, a la práctica de la caza durante la temporada de nieve, a los perros, a las aves acuáticas y a los animales de paso, a la recogida y al transporte de las piezas de caza;
4° La destrucción de los animales dañinos; 5° La inspección de los morrales.
Artículo L428-8 Las penas establecidas en el párrafo tercero del artículo L.428-1, en los puntos II a V del artículo L.428-3 y las
previstas para los delitos tipificados en el artículo L.428-7 serán siempre aumentadas al máximo cuando las infracciones hubieran sido cometidas por:
1° Los guardas rurales; 2° Los técnicos y agentes del Estado y de la Oficina Nacional Forestal, encargados de los bosques; 3° Los agentes mencionados en el artículo L.428-22 en materia de caza marítima. *Nota: Disposición 2000-914 de 18 de septiembre de 2000 art. 5 III: Quedarán suprimidas a partir de la entrada en
vigor de la Parte Reglamentaria del Código de Medio Ambiente las palabras: "el párrafo tercero del artículo L428-1" y las palabras: "los puntos II a V del artículo L428-3."
Artículo L428-5-1 (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 173 I Diario Oficial de 24 de febrero de 2005)
I. - Será castigado con la pena de cuatro años de prisión y una multa de 60.000 euros el que practicare la caza en las siguientes circunstancias:
1° Durante la noche o en época de veda ; 2° Haciendo uso de un avión, un automóvil o de cualquier otro vehículo para desplazarse hasta el lugar de
comisión de la infracción o para alejarse del mismo. 3° Llevando un arma a la vista u oculta; 4° En reunión. II. - Será castigado con las mismas penas el que ofertare, vendiere, comprare, transportare o vendiere de forma
ambulante piezas de caza fuera de los periodos autorizados según lo dispuesto en el artículo L. 424-8, cuando dichas piezas hubieran sido cazadas cometiendo el delito previsto en el punto I del presente artículo.
III. - Será castigado con las mismas penas el que en cualquier temporada ofertare, vendiere, transportare, vendiere de forma ambulante o comprare a sabiendas piezas de caza a las que se les hubiera dado muerte con artilugios o instrumentos prohibidos y cuando dichas piezas hubieran sido cazadas cometiendo el delito previsto en el punto I.
Artículo L428-7-1 (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 174 Diario Oficial de 24 de febrero de 2005)
I. - Las personas jurídicas podrán ser declaradas penalmente responsables en las condiciones previstas en el artículo 121-2 del Código Penal de los delitos definidos en el presente título.
II. - Las penas que se podrán imponer a las personas jurídicas son: 1° La multa, en las condiciones previstas en el artículo 131-38 del Código Penal; 2° Las penas mencionadas en los apartados 8° y 9° del artículo 131-39 del mismo Código.
Sección III Penas accesorias y complementarias Artículos L428-9 a
L428-18
Subsección 1 Confiscación Artículos L428-9 a
L428-11
Artículo L428-9
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CÓDIGO DE MEDIO AMBIENTE Toda sentencia condenatoria podrá acordar, bajo los apercibimientos correspondientes, la confiscación de las
armas, redes, artefactos y demás instrumentos de caza, así como de los aviones, automóviles o demás vehículos utilizados por los inculpados.
Además, si procediera, ordenará la destrucción de los instrumentos de caza prohibidos.
Artículo L428-10 Si no se hubieran incautado las armas, redes, artilugios, instrumentos de caza o medios de transporte, el inculpado
podrá ser condenado a entregarlos o a pagar su valor, según las medidas adoptadas en la sentencia.
Artículo L428-11 Los objetos enumerados en el artículo L.428-10 abandonados por los inculpados cuya identidad se desconozca,
serán incautados y depositados en la Secretaría judicial del Tribunal competente. Se ordenará la confiscación y, si procediera, la destrucción, a la vista del contenido del atestado.
Subsección 2 Gastos de validación de la licencia de caza Artículos L428-12 a
L428-13
Artículo L428-12 (Ley nº 2003-698 de 30 de julio de 2003 art. 26 Diario Oficial de 31 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 174 Diario Oficial de 24 de febrero de 2005)
El que hubiera practicado la caza sin ser titular de una licencia de caza válida y debidamente validada será condenado al pago de las cuotas previstas en los estatutos a la Federación Departamental de Cazadores y a la Federación Nacional de Cazadores, así como al pago de las tasas cinegéticas exigibles previstas en el artículo L. 423-14. El Presidente del órgano jurisdiccional, tras haber pronunciado la pena, informará al condenado de las consecuencias de la sentencia en cuanto al pago de dichas cuotas y tasas.
Se exigirá el pago del importe de esta condena aunque la pena principal hubiera sido aplazada en virtud de lo dispuesto en el artículo 734 del Código de Proceso Penal.
Artículo L428-13 Lo dispuesto en el artículo L.428-12 será aplicable asimismo al que hubiera practicado la caza en época de veda.
Subsección 3 Retirada y suspensión de la licencia de caza Artículos L428-14 a
L428-17
Artículo L428-14 En caso de condena por infracción en materia de policía de caza o de condena por homicidio involuntario o por
golpes y lesiones involuntarios que hubieran podido producirse durante una acción de caza o de destrucción de animales dañinos, los tribunales podrán privar al infractor del derecho a conservar u obtener una licencia de caza, la autorización de caza mencionada en el artículo L.423-2 o la autorización mencionada en el artículo L.423-3 durante un período que no podrá ser superior a cinco años.
Cuando el homicidio involuntario o los golpes y lesiones involuntarios citados en el párrafo anterior fueran consecuencia de un disparo directo sin identificación previa del blanco, los tribunales podrán ordenar la retirada definitiva de la licencia de caza o de la autorización mencionada en el artículo L.423-3 al infractor. Si el homicidio involuntario o los golpes y lesiones involuntarios hubieran sido cometidos por el titular de una autorización de caza citada en el artículo L.423-2, los tribunales podrán privar al infractor del derecho a obtener una licencia de caza durante un período que no podrá ser superior a diez años.
Artículo L428-15 (Ley nº 2005-157 de 23 de febrero de 2005 art. 174 Diario Oficial de 24 de febrero de 2005)
La autoridad judicial podrá ordenar la suspensión de la licencia de caza o de la autorización de caza mencionada en el artículo L. 423-2:
1° Al condenado por homicidio involuntario o golpes y lesiones involuntarios cometidos durante una acción de caza o por destrucción de animales dañinos;
2° Al que hubiera cometido alguna de las siguientes infracciones: a) Practicar la caza por la noche en terreno de un tercero con un vehículo a motor; b) Practicar la caza en las reservas declaradas por el Estado y en los territorios de los Parques Nacionales donde
estuviera prohibido cazar; c) Practicar la caza en los terrenos cercados, colindantes o no con viviendas, sin el consentimiento del propietario; d) Destruir animales de especies protegidas; e) Cometer infracciones a lo dispuesto en el plan de caza mayor; f) Amenazar o cometer actos violentos contra personas en el momento de la comprobación de de una infracción en
materia de caza.
Artículo L428-16 En los casos mencionados en el artículo L.428-15, se dirigirá una copia certificada conforme del atestado de
comprobación de las infracciones enumeradas en dicho artículo al Juez del Tribunal de Instancia de la Circunscripción
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CÓDIGO DE MEDIO AMBIENTE en la que se hubiera cometido la infracción.
El Juez podrá ordenar inmediatamente la suspensión de la licencia de caza del infractor. Esta medida de suspensión será notificada al interesado por vía administrativa y le será entregada una copia de la resolución judicial.
Artículo L428-17 La suspensión no surtirá efecto hasta que el Tribunal que resuelva en primera instancia sobre la infracción
comprobada no emita su resolución. No obstante, antes de la resolución judicial, el infractor podrá solicitar del Juez del Tribunal de Instancia la restitución provisional de su licencia.
Subsección 4 Suspensión del permiso de conducir Artículo L428-18
Artículo L428-18 (Ley nº 2005-157 de 23 de febrero de 2005 art. 174 Diario Oficial de 24 de febrero de 2005)
Las personas culpables de las infracciones definidas en los artículos L. 428-1, L. 428-4, L. 428-5 y L. 428-5-1 podrán ser sancionadas con la suspensión del permiso de conducir por un periodo de tres años, cuando la infracción hubiera sido cometida haciendo uso de un vehículo a motor. Dicha suspensión podrá limitarse a la conducción fuera de la actividad profesional.
Sección IV Comprobación de las infracciones y acciones judiciales Artículos L428-19 a
L428-33
Subsección 1 Comprobación de las infracciones Artículos L428-19 a
L428-26
Artículo L428-19 Las infracciones contempladas en el presente título serán comprobadas o bien por medio de atestados o informes,
o bien por testigos, en defecto de los anteriores.
Artículo L428-20 (Ley nº 2005-157 de 23 de febrero de 2005 art. 230 VII Diario Oficial de 24 de febrero de 2005 con entrada en vigor el 1 de julio de 2005)
I. - Sin perjuicio de lo dispuesto en el artículo L. 428-21, además de los funcionarios y agentes de la policía judicial que ejercieran sus funciones de conformidad con las disposiciones del Código de Proceso Penal, estarán habilitados para investigar y comprobar las infracciones a lo dispuesto en el presente título y en los reglamentos dictados para su aplicación, dentro del ámbito territorial de las circunscripciones para las que han prestado juramento:
1° Los agentes del Estado, de la Oficina Nacional de Caza y Fauna Silvestre, del Consejo Superior de Pesca, del Domaine National de Chambord, de la Oficina Nacional Forestal y de los Parques Nacionales nombrados para comprobar las infracciones en materia forestal, de caza y de pesca;
2° Los guardas rurales; 3° Los tenientes de la organización de la batida de lobos (Louveterie). II. - Los hechos recogidos en los atestados realizados por estos funcionarios o agentes se presumirán ciertos, salvo
prueba en contrario. NOTA: Ley nº 2005-157 art. 230 VIII: "Por decreto se establecerán las condiciones de aplicación del presente
artículo (art. 230) y especialmente las normas de organización y funcionamiento del organismo, de conservación del castillo y de gestión de los bosques."
Dichas disposiciones surtirán efecto en el momento de la entrada en vigor del decreto previsto en el artículo (VIII) y, a más tardar, el 1 de julio de 2005.
Artículo L428-21 Los guardas jurados de caza particulares comprobarán por medio de atestados las infracciones a las disposiciones
del presente capítulo que causen un perjuicio a los titulares de derechos de caza que los hubieran contratado. Los hechos recogidos en sus atestados se presumirán ciertos, salvo prueba en contrario. A solicitud de los propietarios y titulares de derechos de caza, se podrá concluir un contrato entre ellos y la
Federación Departamental de Cazadores de la que sean miembros para que agentes de desarrollo de esta Federación se encarguen de ejercer las funciones de guardería privada de sus territorios. Los agentes nombrados para ejercer esta función por la Federación serán autorizados por el representante del Estado en el departamento. Se beneficiarán de lo dispuesto en los dos primeros párrafos del presente artículo dentro del límite territorial para el que hubieran sido nombrados.
Artículo L428-22 En materia de infracción a la reglamentación de la caza, salvo prueba en contrario, se presumirán ciertos los
hechos recogidos en los atestados levantados por: 1° Los oficiales de la policía judicial; 2° Los oficiales, funcionarios, agentes y guardas habilitados, en virtud de las disposiciones en vigor, para
comprobar las infracciones en materia de policía de pesca marítima o de caza en zona terrestre;
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CÓDIGO DE MEDIO AMBIENTE 3° En su caso, y en las condiciones establecidas por decreto, los guardas de caza marítimos nombrados a estos
efectos por decisión ministerial y que hubieran prestado juramente ante el Tribunal de Instancia de su lugar de residencia.
Artículo L428-23 Se presumirán ciertos, salvo prueba en contrario, los hechos recogidos en los atestados levantados por los
funcionarios de las administraciones de contribuciones indirectas, dentro de los límites de sus atribuciones respectivas, cuando estos funcionarios investiguen y comprueben las infracciones a lo dispuesto en los artículos L.424-8 y L.424-12.
Artículo L428-24 El Ministro competente en materia de caza nombrará a agentes que estuvieran prestando servicio en la Oficina
Nacional de Caza y Fauna Silvestre para que ejerzan las funciones de agentes técnicos de aguas y montes.
Artículo L428-25 Los atestados deberán ser remitidos al Fiscal de la República dentro los tres días siguientes a su incoación, bajo
pena de nulidad. En materia de caza marítima, el Fiscal de la República competente será el Fiscal ante el Tribunal de Grande
Instance en cuya Circunscripción esté situado el municipio más cercano al lugar de comisión de la infracción.
Artículo L428-26 Se otorgará una gratificación por condena a los guardas y gendarmes encargados de levantar los atestados de
comprobación de las infracciones a lo contemplado en el presente título, cuyo importe no podrá ser superior al importe de la multa impuesta y recaudada.
Subsección 2 Investigación de las infracciones Artículos L428-27 a
L428-32
Artículo L428-27 La búsqueda de las piezas de caza no podrá realizarse en los domicilios, salvo que se trate de mesones, tiendas
de comestibles y establecimientos abiertos al público.
Artículo L428-28 En el caso contemplado en el artículo L.424-13, la búsqueda de las piezas de caza de montaña podrá también
llevarse a efecto en los comercios de venta de caza muerta o viva, tanto si fueran mayoristas, semimayoristas o minoristas, como de hosteleros, restauradores, gerentes o directores de comedores, carniceros, charcuteros, fabricantes de conservas y, en general, todos aquellos que guardasen carne.
Artículo L428-29 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 14º Diario Oficial de 3 de julio de 2003)
Salvo en su domicilio, los cazadores y las personas que los acompañen tendrán la obligación de abrir sus morrales, bolsas o mochilas de caza, cuando fueran requeridos por cualquiera de los agentes siguientes: oficiales de la policía judicial, funcionarios de policía y militares de la gendarmería que no fueran funcionarios de la policía judicial, agentes mencionados en los apartados 1º y 3º del punto I del artículo L.428-20, así como los guardas de las Federaciones departamentales de cazadores mencionados en el párrafo tercero del artículo L.428-21 conforme a las condiciones establecidas en este artículo.
Esta comprobación solamente podrá realizarse en las circunscripciones en las que los agentes de inspección anteriormente mencionados estuvieran habilitados a levantar atestados en materia de caza.
Artículo L428-30 Los oficiales, funcionarios, agentes y guardas mencionados en el artículo L.428-22, excepto los guardas
particulares que no hubieran sido nombrados a estos efectos, podrán penetrar en los artefactos flotantes y en todas las instalaciones situadas en el dominio público marítimo cuyo destino fuera la práctica de la caza al acecho, con la finalidad de comprobar las infracciones cometidas en materia de caza marítima.
Artículo L428-31 Los agentes mencionados en el artículo L.428-20 podrán proceder a la incautación del objeto de la infracción, de
las armas, así como de los instrumentos y vehículos señalados en el artículo L.428-9. En caso de infracción a lo dispuesto en los artículos L.424-8 a L.424-13 y a las disposiciones reglamentarias
relativas al transporte y comercialización de la caza, se incautará la caza y se entregará inmediatamente al centro de beneficencia más próximo.
Artículo L428-32 (Ley nº 2005-157 de 23 de febrero de 2005 art. 174 Diario Oficial de 24 de febrero de 2005)
Los siguientes funcionarios serán los únicos habilitados para aprehender a los autores de las infracciones definidas en el presente capítulo:
1° Los oficiales y agentes de la policía judicial con arreglo a las condiciones previstas en el Código de Proceso Penal;
2° En caso de delito flagrante, los agentes mencionados en los apartados 1° y 2° del artículo L. 480-20, que deberán conducir a las personas aprehendidas ante el oficial de policía judicial más próximo.
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CÓDIGO DE MEDIO AMBIENTE Subsección 3 Acciones judiciales Artículo L428-33
Artículo L428-33 (Ley nº 2005-157 de 23 de febrero de 2005 art. 174 Diario Oficial de 24 de febrero de 2005)
En el caso de practicar la caza en el predio de un tercero sin el consentimiento de su propietario, la acción judicial de oficio no podrá ser ejercida por el Ministerio Fiscal sin denuncia previa de la parte interesada, a no ser que la infracción hubiera sido cometida dentro de un terreno cercado, con arreglo a los términos del artículo L. 424-3, y colindante con una vivienda o en terrenos donde todavía no se hubieran recogido sus frutos.
Capítulo IX Disposiciones especiales aplicables a los departamentos de Bajo-Rin, Alto-Rin y
Moselle Artículos L429-2 a L429-1
Artículo L429-1 (Ley nº 2005-157 de 23 de febrero de 2005 art. 168 X Diario Oficial de 24 de febrero de 2005)
Las disposiciones del presente título serán aplicables a los departamentos de Bajo-Rin, Alto-Rin y Moselle, exceptuando las de los artículos: L. 422-2 a L. 422-26, L. 424-8, L. 426-1 a L. 426-8, L. 427-9 y L. 428-1, párrafos 1 y 2, y sin perjuicio de lo dispuesto en el presente capítulo.
Sección I Administración de la caza en el territorio municipal Artículos L429-2 a
L429-18
Subsección 1 Territorio municipal Artículos L429-2 a
L429-6
Artículo L429-2 El derecho de caza en las tierras y los espacios cubiertos de agua será administrado por el municipio, en nombre y
por cuenta de los propietarios.
Artículo L429-3 Lo dispuesto en el artículo L.429-2 no será de aplicación: 1° A los terrenos militares; 2° A los terrenos de la Red ferroviaria de Francia y de la Sociedad Nacional de Ferrocarriles Franceses; 3° A los bosques demaniales; 4° A los bosques de propiedad indivisa entre el Estado y otros titulares; 5° A los terrenos rodeados de un cercado continuo que impida cualquier comunicación con las propiedades
vecinas.
Artículo L429-4 El propietario podrá reservarse el ejercicio del derecho de caza en los terrenos con una superficie de al menos
veinticinco hectáreas continuas, así como en los lagos y estanques con una superficie de al menos cinco hectáreas. Los ferrocarriles, vías de circulación o cursos de agua no interrumpirán la continuidad de un predio, salvo en caso
de obras de acondicionamiento realizadas para impedir el paso de la caza mayor. La existencia a 21 de junio de 1996 de algunos de los acondicionamientos mencionados en el párrafo anterior no
será oponible a los propietarios que hubieran ejercido su derecho de reserva con anterioridad a esa fecha.
Artículo L429-5 Se creará una Comisión Consultiva Municipal de Caza, representando a las diferentes partes interesadas, bajo la
presidencia del Alcalde. En su caso, se podrá crear una Comisión Intermunicipal.
Artículo L429-6 Los propietarios que quisieran reservarse el ejercicio del derecho de caza, en aplicación del artículo L.429-4, o que
deseen beneficiarse del derecho preferente de arrendamiento del derecho de caza en terrenos enclavados, en aplicación del artículo L.429-17, lo comunicarán al Alcalde por escrito dentro de los diez días siguientes a la fecha de publicación de la decisión a que se refiere el artículo L.429-13.
Cuando los predios reservados o enclavados estén situados en territorios de varios municipios, el escrito será dirigido al Alcalde de cada uno de estos municipios.
Subsección 2 Ejercicio del derecho de caza Artículos L429-7 a
L429-16
Artículo L429-7 (Ley nº 2001-602 de 9 de julio de 2001 art. 63 II Diario Oficial de 11 de julio de 2001)
Sin perjuicio de lo dispuesto en el artículo L.2541-12 del Código General de Entidades Territoriales, el coto de caza del territorio municipal será arrendado por un período de nueve años mediante subasta pública. El arrendatario
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CÓDIGO DE MEDIO AMBIENTE existente desde al menos tres años se beneficiará, al vencimiento del contrato de arrendamiento, de un derecho preferente en caso de nuevo arrendamiento.
Sin embargo, previo dictamen de la Comisión Consultiva Municipal o Intermunicipal de Caza, el contrato de arrendamiento podrá ser renovado por el mismo período a favor del arrendatario que llevase como mínimo tres años en el lugar, mediante acuerdo libremente adoptado como máximo tres meses antes del vencimiento del contrato en curso. El precio del alquiler no podrá ser inferior al precio calculado en base al precio medio del alquiler de una hectárea obtenido en una subasta de lotes con características cinegéticas semejantes y situados en el municipio o, si procediera, en el departamento. El precio del alquiler fijado en el contrato será, en su caso, incrementado hasta el importe debido. La falta de aceptación por parte del arrendatario de este aumento tendrá carácter de renuncia al contrato. En este caso, el lote en cuestión será dado en arrendamiento en las condiciones establecidas en el párrafo primero del presente artículo.
Cuando el arrendatario del lugar no dé a conocer su intención de solicitar la renovación del contrato de arrendamiento a su favor, el coto de caza municipal podrá ser arrendado también por un período de nueve años a través de un procedimiento de licitación, previo dictamen de la Comisión Consultiva Municipal o Intermunicipal de Caza.
Se podrá dividir el territorio en varios lotes con una superficie mínima de doscientas hectáreas. II. - El arrendamiento tendrá lugar con arreglo a las condiciones de un reglamento, llamado "pliego de condiciones
tipo", establecido por el Prefecto previa consulta con las organizaciones representativas de los municipios, con los cazadores, con los agricultores y con los propietarios agrícolas y forestales.
Este reglamento fijará, en particular, las normas de gestión técnica de la caza, las funciones, la composición y las condiciones de funcionamiento de la Comisión Consultiva Municipal o Intermunicipal de Caza, así como los procedimientos a seguir para la revisión de los contratos de arrendamiento a petición del Alcalde.
Artículo L429-8 Cada municipio podrá asociarse con uno o varios municipios limítrofes para crear uno o varios lotes de caza
intermunicipales y formar un territorio más homogéneo o que se pueda aprovechar con mayor facilidad. En este caso, quedará establecida una Comisión Consultiva Intermunicipal de Caza presidida por el Alcalde de uno
de los municipios.
Artículo L429-9 I. - Podrán arrendar un coto de caza municipal o intermunicipal: 1° Las personas físicas cuyo lugar de residencia principal cumpla con las condiciones de distancia con respecto al
coto de caza. El pliego de condiciones tipo mencionado en el artículo L.429-7 definirá dichas condiciones de distancia, en interés de una gestión racional de la caza. No obstante, dichas condiciones no se aplicarán a los arrendatarios existentes a fecha del 21 de junio de 1996;
2° Las personas jurídicas debidamente registradas o inscritas, cuyos miembros, al menos en un 50%, cumplan con esta condición de domicilio.
II. - Las condiciones mencionadas en los apartados 1º y 2º del punto I tendrán que persistir mientras dure el contrato de arrendamiento del coto de caza, bajo pena de rescisión de pleno derecho de este último.
Artículo L429-10 La elección de la fecha de subasta pública o de la fecha de entrega de las ofertas se realizará al término del plazo
de diez días previsto en el artículo L.429-6. La fecha de subasta pública o de entrega de las ofertas será anunciada al menos con seis semanas de antelación.
Artículo L429-11 El importe del alquiler del coto de caza será abonado al municipio. En caso de crearse lotes intermunicipales, el importe del alquiler de estos lotes será repartido proporcionalmente a
las superficies aportadas por cada municipio.
Artículo L429-12 El reparto del importe del alquiler del coto de caza entre los diferentes propietarios se realizará de manera
proporcional a la superficie catastral de los predios comprendidos en el lote arrendado. Las sumas que no hubieran sido retiradas en el plazo de dos años a partir de la publicación del estado de la cuenta
donde se indique el importe de la parte asignada a cada propietario, pasarán a formar parte del erario municipal.
Artículo L429-13 El importe del arrendamiento del coto de caza pasará a formar parte del erario municipal, cuando así lo decidan al
menos las dos terceras partes de los propietarios que representen al menos las dos terceras partes de los predios situados en el territorio municipal, y estará sujeto a lo dispuesto en la presente sección.
La decisión relativa a la cesión del importe del arrendamiento del coto de caza al municipio será tomada por la doble mayoría requerida en el párrafo anterior, ya sea mediante junta de los propietarios interesados, ya mediante consulta por escrito de estos últimos.
La decisión de ceder o no el importe del arrendamiento del coto de caza municipal será publicada. Tendrá validez durante el período de arrendamiento del coto de caza municipal.
Artículo L429-14 Cuando se hubiera adoptado la decisión prevista en el artículo L.429-13, los propietarios que se hubieran
reservado el ejercicio del derecho de caza, de conformidad con lo dispuesto en el artículo L.429-4, estarán obligados a
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CÓDIGO DE MEDIO AMBIENTE pagar al municipio una contribución proporcional a la extensión catastral de los predios que se hubieran reservado. Esta contribución será añadida al importe del arrendamiento del derecho de caza municipal.
Artículo L429-15 No serán admitidos a participar en la decisión prevista en el artículo L.429-13, los municipios que posean en el
territorio de otro municipio predios que cumplan con las condiciones mencionadas en el artículo L.429-4. En caso de haber adoptado esta decisión y cuando dichos municipios se hubieran reservado el ejercicio del
derecho de caza, éstos no estarán obligados a abonar al otro municipio la contribución fijada en el artículo L.429-14.
Artículo L429-16 El Alcalde fijará, mediante edictos, la fecha en la que los interesados deberán tomar la decisión prevista en el
artículo L.429-13.
Subsección 3 Enclaves Artículo L429-17
Artículo L429-17 Cuando existan terrenos de menos de veinticinco hectáreas enclavados, en su totalidad o en su mayor parte, en
territorios que hubieran sido objeto de la reserva prevista en el artículo L.429-4, el propietario del predio reservado de mayor extensión tendrá prioridad para arrendar el derecho de caza en los terrenos enclavados.
Este arrendamiento será pactado, a instancia suya, por el período de vigencia del contrato de arrendamiento mediante el pago de una indemnización que se calculará proporcionalmente al precio del arrendamiento del derecho de caza municipal.
Si el propietario no manifestara la intención de hacer uso de este derecho en el plazo fijado en el artículo L.429-6, mediante escrito dirigido al Alcalde, los terrenos enclavados permanecerán dentro del coto de caza municipal.
Subsección 4 Disposiciones diversas Artículo L429-18
Artículo L429-18 Una orden del Ministro competente en materia de caza establecerá las disposiciones relativas a la aplicación de la
presente sección.
Sección II Ejercicio de la caza Artículos L429-19 a
L429-22
Subsección 1 Temporada de caza Artículo L429-19
Artículo L429-19 (Ley nº 2003-698 de 30 de julio de 2003 art. 33 Diario Oficial de 31 de julio de 2003)
Se considerará que la noche es el período de tiempo que empieza una hora después de la puesta del sol y termina una hora antes de su salida.
No obstante lo dispuesto en el artículo L.424-4 y durante el período hábil de caza para esta especie, la autoridad administrativa podrá autorizar, en las condiciones que determine, la práctica del tiro nocturno para el jabalí, al acecho o al rececho, sin el empleo de focos luminosos.
Subsección 3 Métodos y medios de caza Artículo L429-20
Artículo L429-20 La autoridad administrativa podrá prohibir todos los métodos o artilugios de caza que no estén permitidos para el
ejercicio legal de la caza.
Subsección 4 Comercialización y transporte de la caza Artículos L429-21 a
L429-22
Artículo L429-21 Queda prohibido ofertar, vender, comprar, transportar o vender de forma ambulante piezas de caza durante la
época de veda. Esta prohibición entrará en vigor a partir de los quince días de la fecha de inicio de la veda. Esta disposición no será aplicable a la venta y al transporte de piezas de caza ordenado por la autoridad
administrativa.
Artículo L429-22 Las prohibiciones mencionadas en el artículo L.429-21 no se aplicarán a la venta de determinadas especies de
piezas de caza conservadas en los frigoríficos siempre que la misma se realice bajo control y de conformidad con las medidas promulgadas por el Ministro competente en materia de caza. Los gastos de control correrán por cuenta de los propietarios de los frigoríficos y podrán ser cobrados en forma de una tasa con arreglo a la tarifa establecida.
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CÓDIGO DE MEDIO AMBIENTE Sección III Indemnización por daños causados por las piezas de caza Artículos L429-23 a
L429-32
Subsección 1 Régimen general Artículos L429-23 a
L429-26
Artículo L429-23 Cuando el titular del derecho de caza sobre un predio no sea el propietario de dicho predio y éste sufra daños
causados por jabalíes, ciervos, alces, gamos, corzos, faisanes, liebres o conejos, el titular del derecho de caza estará obligado a reparar dichos daños ocasionados a la persona perjudicada. Este deber de reparación se extenderá a los daños que los animales hubieran causado a los productos del predio que, habiendo sido recogidos, se hallaren aún en el terreno.
Artículo L429-24 La responsabilidad del titular del derecho de caza sustituirá a la del propietario siempre que: a) Este último estuviera legalmente privado del ejercicio de su derecho de caza; b) El mismo hubiera arrendado su derecho de caza al propietario de otro predio por imposibilidad de
aprovechamiento de su predio si no fuera conjuntamente con el derecho de caza de ese otro predio.
Artículo L429-25 Los daños causados a los jardines, huertos, invernaderos y árboles aislados no darán lugar a reparación cuando
por negligencia no se hubieran establecido las instalaciones protectoras habitualmente suficientes para impedir los daños.
Artículo L429-26 Para la reparación de los daños causados por la caza, exceptuando los causados por los jabalíes, el arrendatario
del terreno de caza sustituirá al municipio que hubiera dado en arrendamiento ese terreno, de conformidad con lo dispuesto en el artículo L.429-7.
Sin embargo, el municipio podrá tener la obligación de reparar de los daños causados por animales que no sean los jabalíes, cuando el arrendatario del derecho de caza y el depositario de la fianza fueran insolventes, salvo que presentara un recurso contra estos últimos.
Subsección 2 Disposiciones especiales para la indemnización por los daños causados
por los jabalíes Artículos L429-27 a L429-32
Artículo L429-27 (Ley nº 2005-157 de 23 de febrero de 2005 art. 175 Diario Oficial de 24 de febrero de 2005)
Se creará, en cada uno de los departamentos de Bajo-Rin, de Alto-Rin y de Moselle, un fondo departamental de indemnización por daños causados por jabalíes, el cual estará dotado de personalidad jurídica.
Los fondos departamentales de indemnización por daños causados por jabalíes tendrán por misión la indemnización de aquellos agricultores cuyos cultivos hubieran sido dañados por jabalíes. Los mismos podrán llevar a cabo e imponer medidas de prevención.
Los fondos departamentales estarán integrados por los siguientes titulares del derecho de caza: 1° Todos los arrendatarios de cotos de caza demaniales o municipales; 2° Todos los propietarios que se hubieran reservado el ejercicio del derecho de caza en los cotos de su
pertenencia, con arreglo a lo dispuesto en el artículo L. 429-4; 3° La Oficina Nacional Forestal, para los cotos en bosques demaniales aprovechados en forma de concesiones de
licencias o reservas.
Artículo L429-28 (Ley nº 2005-157 de 23 de febrero de 2005 art. 175 Diario Oficial de 24 de febrero de 2005)
Los fondos departamentales de indemnización por daños causados por jabalíes elaborarán conjuntamente sus estatutos tipo, que serán aprobados por órdenes de los Prefectos de Bajo-Rin, Alto-Rin y Moselle. En caso de desacuerdo entre estos Prefectos y los fondos departamentales, los estatutos serán establecidos por decreto adoptado en Conseil d'Etat. Cada fondo departamental deberá seguidamente reunir a sus miembros en una asamblea general para adoptar los estatutos tipo.
La asamblea general resolverá por mayoría de votos de los miembros presentes o representados. Cada miembro del fondo departamental dispondrá como mínimo de un voto, cualquiera que fuera su superficie, y como máximo de diez. Los votos se repartirán de la siguiente manera: uno por fracción completa de 100 hectáreas de superficie forestal, y uno por fracción completa de 200 hectáreas de superficie no forestal, teniéndose en cuenta para el cálculo la superficie total del coto o de los cotos del miembro.
Se entenderá por superficie forestal aquella constituida por bosques, montes bajos, bosquetes, setos y cañaverales, la cual haya sido calculada y certificada por cada municipio.
Artículo L429-29
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CÓDIGO DE MEDIO AMBIENTE (Ley nº 2005-157 de 23 de febrero de 2005 art. 175 Diario Oficial de 24 de febrero de 2005)
Las personas citadas en los apartados 1°, 2° y 3° del artículo L. 429-27 deberán adherirse obligatoriamente al fondo departamental de indemnización por daños causados por jabalíes.
Artículo L429-30 (Ley nº 2005-157 de 23 de febrero de 2005 art. 175 Diario Oficial de 24 de febrero de 2005)
Cada año antes del 1 de abril, los miembros del fondo departamental de indemnización por daños causados por jabalíes citados en los artículos L. 429-27 y L. 429-29, deberán abonar a la caja del fondo al que se hubieran adherido una contribución fijada por su asamblea general, la cual no excederá del 12% del arrendamiento de caza anual o de la contribución establecida en el artículo L. 429-14.
Cualquier cantidad adeudada al fondo departamental y no pagada dentro de los plazos fijados dará lugar al pago de intereses calculados mediante aplicación a las cantidades pendientes de pago de un tipo de interés equivalente al tipo de interés legal multiplicado por 1,5.
Artículo L429-31 (Ley nº 2005-157 de 23 de febrero de 2005 art. 175 Diario Oficial de 24 de febrero de 2005)
Cuando los ingresos constituidos en un año con arreglo a lo dispuesto en el artículo L. 429-30 y la cuenta de reserva no bastaran para cubrir los gastos en que incurriera el fondo departamental de indemnización, su asamblea general establecerá para dicho año una o varias de las siguientes contribuciones complementarias:
a) Una contribución complementaria departamental adeudada por los miembros del fondo departamental, proporcional a la superficie forestal de su coto de caza;
b) Una contribución complementaria determinada para cada sector cinegético del departamento, adeudada por los miembros del fondo departamental del sector en cuestión, proporcional a la superficie total de su coto de caza o proporcional a su superficie forestal;
c) Una contribución personal única adeudada por cada cazador, a abonar el primer día de caza del jabalí en el departamento.
Por el contrario, cuando los ingresos de un año, constituidos por las contribuciones previstas en el artículo L. 429-30, fueran superiores a los gastos del fondo departamental, el excedente será destinado a la cuenta de reserva del departamento.
Cuando al cierre del ejercicio, la cuenta de reserva fuera superior al importe medio de los gastos de los tres últimos ejercicios, el excedente se deducirá de las sumas a percibir el año siguiente, en virtud de lo dispuesto en el artículo L. 429-30.
Artículo L429-32 (Ley nº 2005-157 de 23 de febrero de 2005 art. 175 Diario Oficial de 24 de febrero de 2005)
Cualquier solicitud de indemnización por daños causados por jabalíes deberá remitirse, tras la constatación de los daños, al fondo departamental, el cual nombrará a un evaluador para examinar de manera contradictoria los cultivos agrícolas dañados. El evaluador emitirá de inmediato sus conclusiones sobre los daños imputables a los jabalíes, su antigüedad, la superficie afectada por dichos daños, el porcentaje de superficie afectada y la pérdida de cosecha estimada.
A falta de acuerdo sobre las conclusiones del evaluador y dentro de un plazo de ocho días tras el informe del evaluador bajo pena de preclusión, el agricultor o el fondo departamental podrá recurrir al Tribunal del Grande Instance en cuya circunscripción se encuentren los cultivos dañados, para que éste nombre a un perito.
A falta de acuerdo sobre las conclusiones del perito judicial y dentro de un plazo de ocho días tras la emisión de su informe bajo pena de preclusión, el agricultor o el fondo departamental podrá acudir al mismo Tribunal para que fije el importe de la indemnización.
No se admitirá estimación ni peritaje judicial después de realizada la cosecha en los cultivos agrícolas dañados.
Sección IV Penalizaciones Artículos L429-33 a
L429-40
Subsección 1 Penas Artículos L429-33 a
L429-37
Artículo L429-33 Estará prohibido perseguir las piezas de caza heridas o apoderarse de las piezas caídas en un terreno de caza
perteneciente a un tercero, sin la autorización del titular del derecho de caza.
Artículo L429-34 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
El que cazare en un coto sin estar facultado para ello será castigado con la pena de tres meses de prisión y una multa de 3.750 euros.
Si el culpable fuera una persona allegada al titular del derecho de caza, la acción judicial necesitará denuncia previa del agravado. Dicha denuncia podrá ser retirada.
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CÓDIGO DE MEDIO AMBIENTE Artículo L429-35
En el caso del delito tipificado en el artículo L.429-34, las penas podrán ser aumentadas al doble si se hubiera hecho uso de lazos, redes, trampas u otros artilugios en lugar de armas a fuego y perros, o si el delito hubiese sido cometido en época de veda, en bosques, durante la noche o por varias personas conjuntamente.
Artículo L429-36 Si el culpable del delito tipificado en el artículo L.429-34 se dedicara profesionalmente a la caza prohibida, será
castigado con la pena de tres meses de prisión. Además, será privado de los derechos cívicos y se comunicará a la policía para su vigilancia.
Artículo L429-37 El artículo L.428-15 será aplicable a las infracciones contempladas en dicho artículo tal como están definidas en los
textos relativos a la caza y a la protección de la naturaleza, vigentes en los departamentos de Bajo-Rin, de Alto-Rin y de Moselle.
Subsección 2 Reincidencia Artículo L429-38
Artículo L429-38 A efectos del presente capítulo, se considerará que existe reincidencia cuando dentro de un período anterior de
dos años el inculpado hubiera sido condenado en virtud de lo dispuesto en el presente capítulo.
Subsección 3 Penas accesorias y complementarias Artículos L429-39 a
L429-40
Artículo L429-39 La escopeta, los pertrechos de caza y los perros que el inculpado llevara consigo en el momento de cometer el
delito tipificado en el artículo L.429-34 serán confiscados, así como los lazos, trampas y otros artilugios, pertenecieran o no al inculpado.
Artículo L429-40 El Tribunal podrá ordenar la confiscación de los artilugios prohibidos en virtud del artículo L.429-20, pertenezcan o
no al inculpado.
Título III Pesca en agua dulce y gestión de los recursos piscícolas Artículos L431-1 a
L430-1
Artículo L430-1 La conservación de los medios acuáticos y la protección del patrimonio piscícola son de interés general. La protección del patrimonio piscícola implica una gestión equilibrada de los recursos piscícolas de los que la
pesca, actividad de carácter social y económico, constituye el elemento principal.
Capítulo I Ámbito de aplicación Artículos L431-1 a
L431-8
Sección I Disposiciones generales Artículos L431-1 a
L431-5
Artículo L431-1 Estarán sujetos a lo dispuesto en el presente título todos los pescadores que se dedicaran a la pesca en las aguas
definidas en el artículo L.431-3, en cualquier concepto y cualquiera que fuera su finalidad, y especialmente con fines recreativos o profesionales.
Artículo L431-2 Las disposiciones del presente título relativas a peces se aplicarán igualmente a crustáceos y ranas así como a sus
desoves.
Artículo L431-3 Sin perjuicio de lo dispuesto en los artículos L.431-6 y L.431-7, lo dispuesto en el presente título se aplicará a todos
los cursos de agua, canales y arroyos, así como a los lagos, lagunas y embalses con los que se comuniquen. En los cursos de agua y canales que fluyan al mar, las disposiciones del presente título se aplicarán a las zonas
situadas aguas arriba de los límites de salobridad de las aguas.
Artículo L431-4 Las operaciones de desembalse destinadas exclusivamente a la captura de peces no constituyen comunicación en
el sentido dado a esta palabra por el artículo L.431-3.
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CÓDIGO DE MEDIO AMBIENTE Artículo L431-5
Los propietarios de los lagos, lagunas y embalses que no sean los mencionados en el párrafo 1 del artículo L.431-3, podrán solicitar para estos últimos la aplicación de las disposiciones del presente título por un período mínimo de cinco años consecutivos, en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Sección II Piscifactorías Artículos L431-6 a
L431-8
Artículo L431-6 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Disposición nº 2005-805 de 18 de julio de 2005 art. 7 Diario Oficial de 19 de julio de 2005)
A efectos del título I del libro 2 y del título III del libro IV, se entenderá por piscifactoría la explotación de cultivo de peces con fines de consumo humano, de repoblación, ornamentales, experimentales o científicos o de valorización turística. En este último caso, estará permitido capturar peces con caña en los lagos, lagunas y embalses.
NOTA: Disposición 2005-805 18.07.05 art. 22: I. Se adoptará un decreto relativo al catálogo previsto en el artículo L. 214-2 del Código de Medio Ambiente en el
plazo de un año a partir de la publicación de la presente disposición. II. - El artículo 7 de la presente disposición entrará en vigor en la misma fecha.
Artículo L431-7 (Disposición nº 2005-805 de 18 de julio de 2005 art. 8 Diario Oficial de 19 de julio de 2005)
Con excepción de dispuesto en los artículos L. 432-2, L. 432-10, L. 432-11 y L. 432-12, las disposiciones del presente título no serán aplicables a las piscifactorías legalmente autorizadas o declaradas, así como a los lagos, lagunas y embalses existentes a 30 de junio de 1984, formados por presa de derivación o embalse y equipados con dispositivos permanentes que impidan la libre circulación de los peces entre estos lagos, lagunas y embalses y las aguas con las que se comuniquen, siempre que:
1° Hayan sido creados en virtud de un derecho basado en un título que conlleve el derecho a interceptar la libre circulación de peces;
2° Hayan sido creados por la retención de una presa establecida para fines de piscicultura antes del 15 de Abril de 1829, atravesando un curso de agua de propiedad privada que no esté clasificado dentro del régimen de las escalas de peces mencionado en el artículo L. 432-7 y que no figure en la lista contemplada en el artículo L. 432-6 ;
3° Hayan sido creados en virtud de concesión o autorización administrativa, hasta el final del período de dicha concesión o autorización. Los titulares de estas autorizaciones o concesiones podrán pedir su renovación con arreglo a lo dispuesto en el artículo L. 214-2 a L. 214-6.
Artículo L431-8 A partir del 1 de enero de 1992, solamente podrán beneficiarse de lo dispuesto en el artículo L.431-7 los titulares
de derechos, concesiones o autorizaciones que hubieran realizado su declaración ante la autoridad administrativa.
Capítulo II Conservación de los medios acuáticos y protección del patrimonio piscícola Artículos L432-1 a
L432-12
Sección I Obligaciones generales Artículo L432-1
Artículo L432-1 El propietario de un derecho de pesca, o su causahabiente, deberá contribuir a la protección del patrimonio
piscícola y de los medios acuáticos. A dichos efectos, no deberá atentar contra los mismos y, en su caso, deberá realizar en las márgenes y en el cauce del curso de agua los trabajos de mantenimiento que fueran necesarios para la conservación de la vida acuática.
Previo acuerdo del propietario, dicha obligación podrá ser asumida por una asociación autorizada de pesca y piscicultura o por la Federación Departamental de las asociaciones autorizadas de pesca y piscicultura, la cual, en contrapartida, ejercerá gratuitamente el derecho de pesca durante el período en el que asuma dicha obligación. La duración de este período podrá ser fijada por contrato.
En caso de incumplimiento de la obligación de contribuir a la protección del patrimonio piscícola y de los medios acuáticos, la administración podrá realizar de oficio los trabajos necesarios por cuenta del propietario o, si éste estuviera liberado de su obligación, por cuenta de la asociación o de la federación que se hubiera hecho cargo.
Sección II Protección de la fauna piscícola y de su hábitat Artículos L432-2 a
L432-4
Artículo L432-2 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
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CÓDIGO DE MEDIO AMBIENTE Se castigará con la pena de dos años de prisión y una multa de 18.000 euros la descarga, vertido o escorrentía,
directa o indirecta, en las aguas mencionadas en el artículo L.431-3, de cualquier sustancia cuya acción o reacciones hubieran destruido peces o hubieran perjudicado su nutrición, reproducción o valor alimenticio.
El Tribunal podrá ordenar asimismo la publicación en dos o más periódicos de un extracto de la sentencia por cuenta del infractor.
Artículo L432-3 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Derogado por la Disposición nº 2005-805 de 18 de julio de 2005 art. 22 II bajo reserva Diario Oficial de 19 de julio de 2005)
Las instalaciones o construcciones, así como la ejecución de obras en el cauce de los cursos de agua estarán sujetas a autorización cuando sean susceptibles de destruir los frezaderos, las zonas de crecimiento, las zonas de alimentación o de reservas de alimento para la fauna piscícola. El que efectuare dichas obras sin la autorización correspondiente será sancionado con una multa de 18.000 euros.
La autorización expedida en aplicación del presente artículo establecerá medidas compensatorias destinadas a restaurar el medio natural acuático.
NOTA: Disposición 2005-805 de 18 de julio de 2005 art. 22 II: El artículo L. 432-3 ha sido derogado en la fecha de publicación del decreto citado en el punto I del presente artículo.
Artículo L432-4 En caso de condena por infracción a lo dispuesto en los artículos L.432-2 y L.432-3, el Tribunal determinará, si
procediese, las medidas a adoptar para que cese la infracción o se evite su reincidencia, así como el plazo dentro del cual se deberán ejecutar dichas medidas y la sanción pecuniaria definida en el artículo L.437-20.
Sección III Obligaciones relativas a las construcciones en los cauces de los cursos de
agua Artículos L432-5 a L432-9
Artículo L432-5 Cualquier construcción llevada a cabo en el cauce de un curso de agua tendrá que estar provista, desde su inicio,
de dispositivos para mantener en dicho cauce un caudal mínimo que garantice permanentemente la vida, la circulación y la reproducción de las especies que habitan sus aguas, así como también, en su caso, de dispositivos que impidan la penetración de los peces en los canales de entrada y salida.
Este caudal mínimo no deberá ser inferior a la décima parte del caudal medio interanual del curso de agua a nivel de la construcción, calculándose dicho caudal a partir de las informaciones disponibles sobre un período mínimo de cinco años, o al caudal aguas arriba inmediatamente anterior a la construcción, si el caudal fuera inferior.
No obstante, por decreto adoptado en Conseil d'Etat, se podrá fijar para los cursos de agua o tramos de cursos de agua cuyo caudal medio fuera superior a 80 metros cúbicos por segundo, un límite por debajo del caudal mínimo que no podrá ser inferior a la vigésima parte del caudal medio.
El titular de la explotación de la construcción velarán por el buen funcionamiento y mantenimiento de los dispositivos de tal manera que garanticen en el cauce del curso de agua el caudal mínimo definido en los dos párrafos anteriores.
Las disposiciones de los párrafos anteriores se extenderán a las obras existentes a fecha de 30 de junio de 1984, procediéndose a la reducción progresiva de la diferencia con respecto a la situación actuaL.Estas disposiciones se aplicarán íntegramente a la renovación de las concesiones o autorizaciones de estas obras.
A partir del 30 de junio de 1987, sus respectivos caudales mínimos, salvo imposibilidad técnica inherente a su diseño, no podrán ser inferiores a la cuarta parte de los valores fijados en los párrafos segundo y tercero del presente artículo.
La aplicación de lo dispuesto en el presente artículo no dará lugar a indemnización alguna. Lo dispuesto en el presente artículo no se aplicará al Rin ni al Ródano en razón del régimen internacional de
ambos ríos.
Artículo L432-6 En los cursos de agua o tramos de cursos de agua y canales cuya lista será establecida por decreto, previo
dictamen de los Consejos Generales emitido en el plazo de seis meses, cualquier obra tendrá que estar provista de dispositivos para permitir el libre paso de los peces migratorios. El titular de la explotación de la obra deberá velar por el funcionamiento y el mantenimiento de estos dispositivos.
Las obras existentes tendrán que ser adaptadas, sin indemnización, con arreglo a lo dispuesto en el presente artículo en el plazo de cinco años a partir de la publicación de una lista de especies migratorias por cuenca o subcuenca, que será fijada por el Ministro competente en materia de pesca en agua dulce y, en su caso, por el Ministro de Asuntos Marítimos.
Artículo L432-7 La clasificación de los cursos de agua, tramos de cursos de agua y canales realizada teniendo en cuenta el
régimen de las escalas de peces con anterioridad al 1 de enero de 1986, tendrá valor de clasificación de conformidad con lo dispuesto en el párrafo primero del artículo L.432-6.
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CÓDIGO DE MEDIO AMBIENTE Artículo L432-8 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
El que no cumpliere con lo dispuesto en los artículos L.432-5 y L.432-6 será sancionado con una multa de 12.000 euros.
Cuando una persona fuera condenada en aplicación del presente artículo, el Tribunal podrá resolver que el incumplimiento, en el plazo fijado, de las medidas ordenadas para los fines previstos en los artículos arriba mencionados implicará el pago de la sanción pecuniaria definida en el artículo L.437-20.
Artículo L432-9 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Derogado por la Disposición nº 2005-805 de 18 de julio de 2005 art. 22 II bajo reserva Diario Oficial de 19 de julio de 2005)
Las operaciones de desembalse de los embalses mencionados o no en el artículo L. 431-3, estarán sujetas a autorización según lo dispuesto en el presente artículo. Esta autorización establecerá el programa de la operación y el destino de los peces.
El que efectuare un desembalse sin la autorización contemplada en el párrafo anterior será sancionado con un multa de 12.000 euros.
NOTA: Disposición 2005-805 de 18 de julio de 2005 art. 22 II: El artículo L. 432-9 ha sido derogado en la fecha de publicación del decreto citado en el punto I del presente artículo.
Sección IV Control de las poblaciones de peces Artículos L432-10 a
L432-12
Artículo L432-10 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Será sancionado con una multa de 9.000 euros el que: 1° Introdujere en las aguas mencionadas en el presente título peces pertenecientes a especies susceptibles de
provocar desequilibrios biológicos, y cuya lista será determinada por decreto; 2° Introdujere sin autorización en las aguas mencionadas en el presente título especies alóctonas de peces. La lista
de las especies autóctonas protegidas será establecida por el Ministro competente en materia de pesca en agua dulce; 3° Introdujere en las aguas clasificadas en la primera categoría, en virtud del punto 10º del artículo L.436-5, peces
de las especies siguientes: lucio, perca, lucioperca y perca americana. No obstante, esta disposición no será de aplicación a los lagos Lemán, Annecy y Bourget.
Artículo L432-11 Se prohibirá el transporte de peces de las especies mencionadas en el apartado 1º del artículo L.432-10 sin
autorización expedida en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L432-12 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Será sancionado con una multa de 9.000 euros el que introdujere en las aguas mencionadas en el presente título, para repoblar de peces o alevines, peces que no procedieran de establecimientos de piscicultura o acuicultura autorizados de conformidad con las condiciones determinadas por decreto adoptado en Conseil d'Etat.
Capítulo III Gestión de los medios acuáticos y de los recursos piscícolas Artículos L433-1 a
L433-3
Sección I Directrices de cuenca Artículo L433-1
Artículo L433-1 En cada cuenca hidrográfica, existirá una Comisión, formada principalmente por responsables de pesca, personas
cualificadas, representantes de ribereños, de las entidades locales, de las administraciones interesadas y de las asociaciones de protección del medio ambiente, la cual estará encargada de proponer directrices para la protección y la gestión de los medios acuáticos de la cuenca y de dictaminar sobre todos los asuntos relacionados con este tema. Estas directrices serán establecidas por el Ministro competente en materia de pesca en agua dulce.
Un decreto determinará la composición y las normas de funcionamiento de la Comisión de Cuenca.
Sección II Plan departamental de orientación piscícola Artículo L433-2
Artículo L433-2
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CÓDIGO DE MEDIO AMBIENTE La Federación Departamental de las asociaciones autorizadas de pesca y piscicultura y la asociación autorizada de
pescadores profesionales participarán en la elaboración del Plan Departamental de orientación piscícola de conformidad con las directrices de cuenca definidas por el Ministro competente en materia de pesca en agua dulce.
Sección III Obligación de gestión Artículo L433-3
Artículo L433-3 El ejercicio del derecho de pesca implica la obligación de gestionar los recursos piscícolas. Dicha obligación
conlleva el establecimiento de un plan de gestión. En caso de incumplimiento de esta obligación, la administración podrá tomar de oficio las medidas necesarias por cuenta de la persona física o jurídica que ejerciera el derecho de pesca.
Capítulo IV Organización de los pescadores Artículos L434-1 a
L434-6
Sección I Consejo Superior de Pesca Artículos L434-1 a
L434-2
Artículo L434-1 El Consejo Superior de Pesca es una entidad pública a la que se asignará el importe de la tasa piscícola. Dicha
entidad empleará los fondos de que disponga para la valorización y la vigilancia del patrimonio piscícola nacional, especialmente a través de intervenciones, realizaciones, investigaciones, estudios y actividades docentes a favor de la pesca y de la protección del patrimonio piscícola.
El Consejo Superior de Pesca constituirá además un organismo consultivo ante el Ministro competente en materia de pesca en agua dulce.
Artículo L434-2 Los agentes mencionados en el apartado 1º del punto I del artículo L.437-1 estarán administrados por el Consejo
Superior de Pesca. En situación activa normal, serán puestos a disposición de las Federaciones departamentales de asociaciones autorizadas de pesca y piscicultura.
Sección II Organización de la pesca de recreo Artículos L434-3 a
L434-5
Artículo L434-3 Las asociaciones autorizadas de pesca y piscicultura contribuirán a la vigilancia de la pesca, explotarán los
derechos de pesca de los que fueran titulares, participarán en la protección del patrimonio piscícola y de los medios acuáticos y llevarán a cabo actuaciones de gestión piscícola.
Las asociaciones autorizadas de pescadores aficionados a la pesca con red y con aparejos en aguas de dominio público tendrán las mismas competencias en los lotes de pesca en los que sus miembros estén autorizados a pescar.
En cada departamento, las asociaciones autorizadas de pesca y piscicultura y la asociación autorizada de pescadores aficionados a con red y aparejos en aguas del dominio público estarán obligatoriamente agrupadas en una Federación Departamental de asociaciones autorizadas de pesca y piscicultura.
Artículo L434-4 Las Federaciones departamentales de asociaciones autorizadas de pesca y piscicultura tendrán carácter de
entidad de utilidad pública. Estarán encargadas de valorizar y vigilar el patrimonio piscícola departamental. A estos efectos, participarán en la organización de la vigilancia de pesca, en la protección del patrimonio piscícola y
de los medios acuáticos. Coordinarán las acciones de las asociaciones autorizadas de pesca y piscicultura. Ejercerán los derechos de pesca de los que son titulares, en interés de los miembros de las asociaciones autorizadas de pesca y piscicultura del departamento. Llevarán a cabo acciones de información y educación en materia de protección de los medios acuáticos.
Además, podrán encargarse de cualquier otra misión de interés general relacionada con sus actividades. El Ministro competente en materia de pesca en agua dulce podrá autorizar la creación de federaciones que
agrupen a las asociaciones autorizadas de varios departamentos.
Artículo L434-5 Un decreto adoptado en Conseil d'Etat establecerá las condiciones de aprobación de los estatutos de las
federaciones, las formas de designación de sus órganos directivos, los procedimientos del control que ejercerá la administración sobre las federaciones y las asociaciones, así como las condiciones en las que la administración podrá sustituir a las federaciones en caso de que éstas incumplieran sus obligaciones.
Sección III Organización de la pesca profesional Artículo L434-6
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CÓDIGO DE MEDIO AMBIENTE Artículo L434-6
Las asociaciones autorizadas de pescadores profesionales agruparán, en el ámbito departamental o interdepartamental, a los pescadores profesionales que se dediquen a la pesca a tiempo completo o parcial.
Estas asociaciones contribuirán a la vigilancia de la pesca y participarán en la protección del patrimonio piscícola y de los medios acuáticos.
Un decreto adoptado en Conseil d'Etat establecerá las condiciones de adhesión a estas asociaciones, los procedimientos de aprobación de sus estatutos así como los de control por parte de la administración.
Capítulo V Derecho de pesca Artículos L435-1 a
L435-9
Sección I Derecho de pesca del Estado Artículos L435-1 a
L435-3
Artículo L435-1 I.- El derecho de pesca corresponde al Estado y será ejercido en su beneficio: 1° En el dominio público definido en el artículo 1 del Código del Dominio Público Fluvial y de la Navegación Interior,
salvo los casos en los que el derecho de pesca perteneciera a un particular legitimado mediante el correspondiente título;
2° En los tramos de agua no salada de los cursos de agua y canales de dominio privado que fluyan al mar y que hubieran sido incluidos dentro de los límites de la inscripción marítima con anterioridad al 8 de noviembre y 28 de diciembre de 1926. Estos tramos se determinarán por decreto.
II. - Un decreto adoptado en Conseil d'Etat establecerá las condiciones de explotación por adjudicación, arrendamiento o licencia, del derecho de pesca perteneciente al patrimonio del Estado, y las modalidades de gestión de los recursos piscícolas del dominio público y de los cursos de agua y canales mencionados en los apartados 1º y 2º del punto I. Establecerá, en particular, la lista de funcionarios, agentes y parientes que no podrán participar, ni directa ni indirectamente, en el arrendamiento de este derecho.
Artículo L435-2 Lo dispuesto en el artículo 313-6 del Código Penal será de aplicación a los otorgamientos de licencias por subasta
pública del derecho de pesca del Estado. Será declarada nula cualquier subasta declarada a favor de una persona condenada en aplicación de dichas
disposiciones.
Artículo L435-3 Los conflictos entre la administración y los adjudicatarios, relativos a la interpretación y a la ejecución de las
condiciones de los contratos de arrendamiento y adjudicaciones, así como aquellos que pudieran surgir entre la administración o sus cocontratantes y terceras personas interesadas con relación a sus derechos o títulos de propiedad, serán presentados ante el Tribunal de Grande Instance,
Sección II Derecho de pesca de los ribereños Artículos L435-4 a
L435-5
Artículo L435-4 En los cursos de agua y canales no contemplados en el artículo L.435-1, los propietarios ribereños tendrán el
derecho a pescar en su correspondiente ribera hasta la mitad del curso de agua o canal, salvo derechos en contrario establecidos por posesiones o títulos.
En los lagos, lagunas y embalses no contemplados en el artículo L.435-1, el derecho de pesca pertenecerá al propietario del predio.
Artículo L435-5 Cuando los propietarios ribereños de las aguas mencionadas en el artículo L.435-4 solicitaran y fueran
beneficiarios de subvenciones de fondos públicos destinadas a la rehabilitación o acondicionamiento de las riberas y predios, el derecho de pesca será ejercido gratuitamente a modo de contrapartida, durante un período máximo de veinte años, por una asociación autorizada de pesca y piscicultura designada por la administración, o por la Federación Departamental de asociaciones autorizadas de pesca y piscicultura.
No obstante, cuando se hubiera concedido una subvención a una entidad local o a una comunidad de entidades locales tras una declaración de utilidad pública, el propietario podrá reembolsar la parte de subvención correspondiente a las obras ejecutadas en su predio. En este caso, las disposiciones del presente artículo no le serán aplicables.
Para la aplicación del presente artículo, la duración del período durante el cual la asociación o la federación ejercerá el derecho de pesca estará en función de la proporción en la cual las obras hubieran sido financiadas por subvención con cargo a fondos públicos.
La asociación o la federación que ejerciera gratuitamente un derecho de pesca según lo dispuesto en el presente artículo, tendrá que cumplir con las obligaciones definidas en los artículo L.432-1 y L.433-3.
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CÓDIGO DE MEDIO AMBIENTE Durante el período de ejercicio gratuito del derecho de pesca por parte de una asociación o federación, el
propietario conservará el derecho de pesca para sí mismo, su cónyuge, sus ascendientes y sus descendientes. Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente artículo.
Sección III Derecho de paso Artículos L435-6 a
L435-9
Artículo L435-6 El ejercicio del derecho de pesca conlleva el beneficio del derecho de paso que tendrá que ejercerse, en la medida
de lo posible, siguiendo la ribera del curso de agua y originando el menor perjuicio posible. Las condiciones de ejercicio de dicho derecho de paso podrán ser objeto de un contrato con el propietario ribereño.
Artículo L435-7 Cuando una asociación o una federación definida en los artículos L.434-3 y L.434-5 ejerciera gratuitamente un
derecho de pesca, tendrá la obligación de reparar los daños causados por el ejercicio de este derecho al propietario ribereño o a sus derechohabientes.
Artículo L435-8 El artículo L.215-21 será de aplicación a las obras realizadas y a las medidas adoptadas en virtud de los artículos
L.432-1, L.435-3 y L.435-5.
Artículo L435-9 Los propietarios, arrendatarios, colonos o titulares de un derecho real, ribereños de un curso de agua de dominio
público o de un lago, laguna y embalse de dominio público, estarán obligados a dejar a lo largo de los mismos un espacio libre de 3,25 metros de anchura para uso de los pescadores.
Cuando el ejercicio de la pesca y las necesidades de conservación y vigilancia del curso de agua o del lago, laguna y embalse lo permitan, el Ministro competente en materia de pesca en agua dulce y el Ministro competente en materia de gestión del dominio público fluvial o, por delegación de éstos el Prefecto, podrán reducir la anchura de 3,25 metros antes citada hasta 1,50 metros.
A lo largo de los cursos de agua excluidos del catálogo de vías navegables o flotables pero que continúen bajo dominio público, la anchura del espacio libre que deba dejarse para uso de los pescadores será fijada en 1,50 metros.
A lo largo de los canales de navegación, los pescadores podrán utilizar la servidumbre de camino de sirga y la parte de la margen perteneciente al dominio público, en la medida en que lo permita la explotación de la vía navegable.
Excepcionalmente y por decisión del Ministro competente en materia de pesca en agua dulce y del Ministro competente en materia de gestión del dominio público fluvial o, por delegación de éstos del Prefecto, este derecho podrá ser suprimido por razones de interés general o por razones de seguridad cuando las márgenes estuvieran incluidas dentro del terreno de establecimientos industriales.
En caso de incumplimiento de las disposiciones del presente artículo, relativas al derecho de paso, la administración dirigirá un requerimiento al ribereño instándole a rehabilitar el lugar en un plazo determinado. En caso de incumplimiento dentro del plazo otorgado, la administración o su concesionario procederá de oficio a la rehabilitación por cuenta del ribereño.
Capítulo VI Condiciones de ejercicio del derecho de pesca Artículos L436-1 a
L436-16
Sección I Disposiciones generales Artículos L436-1 a
L436-8
Artículo L436-1 Las personas que se dediquen a la práctica de la pesca tendrán que justificar su pertenencia a una asociación
autorizada de pesca y piscicultura, a una asociación autorizada de pescadores aficionados a la pesca con redes y aparejos en las aguas de dominio público o a una asociación autorizada de pescadores profesionales. Deberán asimismo justificar que han abonado, además de la cuota prevista en los estatutos, una tasa anual, cuyo importe será asignado a los gastos de vigilancia y valorización del patrimonio piscícola nacional.
Artículo L436-2 Los cónyuges de las personas que paguen la tasa piscícola, los titulares de la tarjeta de bajos recursos
económicos, los grandes inválidos de guerra o por accidentes laborales titulares de una pensión de un 85% o más, los que estén cumpliendo el servicio militar y los menores hasta la edad de dieciséis años, estarán dispensados de pagar la tasa piscícola cuando practicaran la pesca utilizando una sola caña provista como máximo de dos anzuelos, exceptuando la pesca de lanzamiento.
Siempre que empleen esta caña, los miembros de las asociaciones autorizadas anteriormente citadas estarán autorizados a pescar gratuitamente y sin formalidades en las aguas de dominio público así como en los lagos, lagunas y embalses donde el derecho de pesca pertenece al Estado. También podrán hacerlo en las aguas que no estén dentro del ámbito definido en el artículo 1 del Código del Dominio Público Fluvial y de la Navegación Interior, siempre que
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CÓDIGO DE MEDIO AMBIENTE dispongan de la autorización del titular del derecho de pesca.
Artículo L436-3 Las Federaciones departamentales de asociaciones autorizadas de pesca y piscicultura y las asociaciones
autorizadas de pescadores profesionales recaudarán, en la cuantía que les corresponda, la tasa piscícola centralizada por el Consejo Superior de Pesca según lo dispuesto en el artículo L.434-1.
Artículo L436-4 (Ley nº 2003-699 de 30 de julio de 2003 art. 57 Diario Oficial de 31 de julio de 2003)
I.- Además de los otros derechos personales o colectivos que les pudieran corresponder, cualquier miembro de una asociación autorizada de pesca y piscicultura estará facultado para pescar:
1° En la ribera o adentrándose en el agua a pie, en las partes clasificadas en primera categoría, en virtud del apartado 10º del artículo L.436-5, de los cursos de agua de dominio público donde el derecho de pesca corresponda al Estado;
2° En la ribera o adentrándose en el agua a pie o en barco, en los tramos de dichos cursos de agua clasificados, en virtud del apartado 10º del artículo L.436-5, en segunda categoría así como en los lagos, lagunas y embalses, cualquiera que fuera su categoría, donde el derecho de pesca corresponda al Estado; En este caso, sin embargo, el Ministro competente en materia de pesca en agua dulce o, por delegación de éste el Prefecto, podrá prohibir con carácter excepcional la pesca con caña en barco.
3° En la ribera solamente para la pesca del salmón, cualquiera que fuera la categoría del curso de agua. No obstante, el Ministro competente en materia de pesca en agua dulce o, por delegación, el Prefecto podrá autorizar a los pescadores de salmones a adentrarse en el agua a pie en determinados recorridos.
II. - El derecho de pesca definido en el presente artículo sólo podrá ser ejercido con una sola caña. III. - Las disposiciones de los puntos I y II serán aplicables igualmente en las aguas que formaban parte del dominio
público fluvial del Estado en la fecha de promulgación de la Ley nº 2003-699 de 30 de julio de 2003 relativa a la prevención de los riesgos tecnológicos y naturales y a la reparación de los daños, y que hubieran sido transferidas a una entidad territorial en aplicación de dicha Ley.
Artículo L436-5 Por decreto adoptado en Conseil d'Etat, previo dictamen del Consejo Superior de Pesca, se determinará las
condiciones en las que, por cada cuenca, se fijarán: 1° Los periodos, temporadas y horas durante los cuales estará prohibida la pesca; 2° El tamaño por debajo del cual no se podrán pescar peces de determinadas especies y la devolución al agua de
los que no alcancen el tamaño mínimo. Este tamaño no podrá ser inferior al correspondiente a la edad de la primera reproducción;
3° El número de capturas autorizado para determinadas especies y, en su caso las condiciones de captura; 4° El tamaño de las redes, aparejos y artes de pesca cuyo empleo esté permitido; 5° El modo de comprobación de las mallas de las redes autorizadas para la pesca de cada especie de peces; 6° Las redes, aparejos y artes de pesca que estén prohibidos por ser susceptibles de perjudicar a la población de
peces de las aguas citadas en el presente título; 7° Los procedimientos y modos de pesca prohibidos; 8° Las especies de peces con las que no esté permitido emplear cebo en los anzuelos, nasas, redes u otros
aparejos; 9° Los cursos de agua o tramos de cursos de agua donde esté prohibida la pesca adentrándose en el agua a pie, a
fin de proteger el medio acuático; 10° La clasificación de los cursos de agua, canales y lagos, lagunas y embalses en dos categorías: a) La primera categoría incluye aquellos que están principalmente poblados de truchas así como aquellos donde se
estima que es conveniente someter a protección especial los peces de esta especie; b) La segunda categoría incluye todos los demás cursos de agua, canales, lagos, lagunas y embalses sujetos a las
disposiciones del presente título.
Artículo L436-6 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
El que instalare una barrera, un dispositivo o cualquier arte fijo con el objeto de impedir totalmente el paso de los peces o de retenerlos cautivos, será sancionado con una multa de 3.750 euros.
El Tribunal podrá ordenar la rehabilitación del lugar, bajo pena de sanción pecuniaria de conformidad con lo establecido en el artículo L.437-20, sin perjuicio de la aplicación de lo dispuesto en el presente título.
Artículo L436-7 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Será castigado con la pena de dos años de prisión y una multa de 4.500 euros el que arrojare a las aguas drogas o cebos con la finalidad de privar a los peces de sus medios naturales de defensa o darles muerte.
Quienes utilizaren explosivos, procedimientos de electrocución o productos y medios no permitidos para capturar o dar muerte a los peces serán castigados con las mismas penas.
Artículo L436-8
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CÓDIGO DE MEDIO AMBIENTE Los contramaestres, empleados de balizamiento y marineros de navegación fluvial que frecuenten los cursos de
agua, canales y lagos de dominio público, no podrán llevar, en sus barcos o equipamientos, ninguna red ni aparejo de pesca que no sean los que se emplean en la pesca con caña.
Desde sus barcos, sólo podrán practicar la pesca con caña, exceptuando la pesca de lanzamiento y la pesca de arrastre, y estarán sujetos a lo dispuesto en el presente título y en los reglamentos dictados para su aplicación.
Sección II Autorizaciones excepcionales Artículo L436-9
Artículo L436-9 La autoridad administrativa encargada de la pesca en agua dulce podrá autorizar, durante la época de veda, la
captura o el transporte de peces destinados a la reproducción o repoblación. En cualquier periodo se podrá autorizar la captura de peces con fines sanitarios o científicos o en caso de
desequilibrios biológicos, así como su transporte y venta.
Sección III Estuarios Artículos L436-10 a
L436-11
Artículo L436-10 En la zona comprendida entre el límite de salobridad de las aguas y los límites de la inscripción marítima fijados el
17 de junio de 1938, los marineros pescadores profesionales podrán practicar la pesca en las mismas condiciones que los pescadores profesionales de agua dulce, siempre que sean titulares de una licencia.
En los cursos de agua y canales que fluyan al mar, aguas arriba del límite de salobridad de las aguas y hasta los antiguos límites de la inscripción marítima fijados con anterioridad al 8 de noviembre y al 28 de diciembre de 1926, los marineros pescadores profesionales que a fecha del 1 de enero de 1927 practicaban la pesca en esa zona en calidad de marineros pescadores inscritos en el registro marítimo y que hubieran hecho la solicitud antes del 2 de enero de 1928, conservarán el derecho a practicar esta pesca si fuesen titulares de una licencia expedida gratuitamente.
Artículo L436-11 En lo relativo a los cursos de agua y canales que fluyan al mar, se regulará de manera uniforme para la pesca en
agua dulce y para la pesca marítima, por medio de decretos adoptados en Conseil d'Etat, las condiciones establecidas para las especies de peces que vivan alternativamente en aguas dulces y en aguas saladas:
1° Las épocas en las que la pesca de estas especies esté prohibida; 2° Los tamaños por debajo de los cuales la pesca de estas especies esté prohibida; 3° Las medidas adecuadas para la reproducción, el desarrollo, la conservación y la circulación de estas especies; 4° La lista de especies cuya venta ambulante y venta estén prohibidas; 5° La lista de especies cuya introducción esté prohibida; 6° El número y el tamaño de las redes, aparejos y artes de pesca cuyo empleo esté permitido;
Sección IV Reservas y prohibiciones permanentes de pesca Artículo L436-12
Artículo L436-12 (Ley nº 2002-92 de 22 de enero de 2002 art. 24 XIV Diario Oficial de 23 de enero de 2002)
Un decreto adoptado en Conseil d'Etat o, en Córcega, una resolución de la Asamblea de Córcega, determinará las condiciones en las que la pesca estará prohibida en determinados tramos de cursos de agua, canales o lagos, lagunas y embalses con el fin de favorecer la protección o la reproducción de los peces. A falta de acuerdo amistoso, la jurisdicción administrativa fijará las indemnizaciones que correspondieran a los propietarios ribereños que estuvieran privados totalmente del ejercicio del derecho de pesca durante más de un año completo en virtud del presente artículo.
Sección V Comercialización Artículos L436-13 a
L436-16
Artículo L436-13 Los pescadores que practiquen la pesca a título profesional, a tiempo completo o parcial, serán los únicos
autorizados a vender el producto de su pesca.
Artículo L436-14 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Sin perjuicio de lo dispuesto en el artículo L.436-15, será sancionado con una multa de 3.750 euros el que vendiere el producto de su pesca sin ostentar la condición de pescador profesional de agua dulce.
Será castigado con las mismas penas el que comprare o comercializare a sabiendas el producto de la pesca de una persona que no ostente la condición de pescador profesional de agua dulce.
Artículo L436-15 I. - Estará prohibido ofertar, vender, comprar, transportar, vender de manera ambulante y exportar las diferentes
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CÓDIGO DE MEDIO AMBIENTE especies de peces durante la época de veda.
II. - Esta disposición no será aplicable cuando quede justificado su origen: 1° A los peces procedentes de aguas no mencionadas en el artículo L.431-3 y de las definidas en los artículos
L.431-6 y L.431-7; 2° A los peces de especies autóctonas actuales de las aguas mencionadas en el presente título, procedentes de
las aguas sometidas a los reglamentos marítimos, durante el período hábil de pesca en estas últimas; 3° A los peces procedentes del extranjero cuya importación esté autorizada.
Artículo L436-16 Se prohibirá la venta ambulante, la venta o la compra de truchas, tímalos, salvelinos y salmones que hubieran sido
pescados en las aguas mencionadas en el presente título. No obstante, esta disposición no se aplicará a las personas que ostenten la condición de pescadores profesionales
de agua dulce cuando practiquen la pesca en los cursos de agua, canales, lagos, lagunas y embalses de dominio público, o en los embalses formados por presas donde el derecho de pesca pertenezca al Estado, así como en los lagos, lagunas y embalses de propiedad privada cuya lista será establecida por el Ministro competente en materia de pesca en agua dulce.
Capítulo VII Disposiciones penales complementarias Artículos L437-1 a
L437-23
Sección I Investigación y comprobación de las infracciones Artículos L437-1 a
L437-13
Subsección 1 Agentes competentes Artículos L437-1 a
L437-3
Artículo L437-1 (Ley nº 2005-157 de 23 de febrero de 2005 art. 230 VII Diario Oficial de 24 de febrero de 2005 con entrada en vigor el 26 de junio de 2005) (Disposición nº 2005-805 de 18 de julio de 2005 art. 9 Diario Oficial de 19 de julio de 2005)
I. - Estarán habilitados para investigar y comprobar las infracciones a lo dispuesto en el presente título y en los reglamentos dictados para su aplicación, cualquiera que fuera el lugar donde se cometieran, además de los funcionarios y agentes de la policía judicial enumerados en los artículos 16, 20 y 21 del Código de Proceso Penal y de los agentes nombrados en virtud a leyes especiales:
1° Los agentes jurados del Consejo Superior de Pesca nombrados a estos efectos por decisión de la autoridad administrativa;
2° Los ingenieros agrónomos, los ingenieros de montes, los ingenieros de obras y los agentes cualificados encargados de ejercer las funciones de policía de pesca en las Direcciones Departamentales de Agricultura y Montes y en la Oficina Nacional Forestal, los ingenieros y agentes cualificados de los servicios encargados de la navegación, jurados y nombrados a estos efectos por decisión de la autoridad administrativa;
3° Los ingenieros en activo de la Oficina Nacional Forestal y los agentes jurados de esta entidad citados en el artículo L. 122-7 del Código Forestal;
4° Los guardas rurales; 5° Los agentes de la Oficina Nacional de Caza y Fauna Silvestre, jurados en la circunscripción en que
desempeñaran su función; II. - Los agentes destinados en el Consejo Superior de Pesca podrán controlar las condiciones en las que, más allá
del límite de salobridad de las aguas, se practique la pesca de las especies de peces que vivan alternativamente en agua dulce y salada.
III. - Asimismo, tanto los agentes de aduanas como los agentes autorizados por el Decreto de 9 de enero de 1852 relativo al ejercicio de la pesca marítima, podrán investigar y comprobar las infracciones a lo dispuesto en el presente título y en los reglamentos dictados para su aplicación.
NOTA: Ley nº 2005-157 art. 230 VIII: "Por decreto se establecerán las condiciones de aplicación del presente artículo (art. 230) y especialmente las normas de organización y funcionamiento del organismo, de conservación del castillo y de gestión de los bosques."
Dichas disposiciones surtirán efecto en el momento de la entrada en vigor del decreto previsto en el artículo (VIII) y, a más tardar, el 1 de julio de 2005.
Artículo L437-2 Los agentes mencionados en el artículo L.437-1 investigarán y comprobarán por medio de atestados las
infracciones de las circunscripciones en cuyos tribunales hayan prestado juramento.
Artículo L437-3 En lo concerniente al ejercicio de sus funciones en materia de policía, los agentes destinados en el Consejo
Superior de Pesca estarán asimilados a los técnicos del Estado encargados de los bosques.
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CÓDIGO DE MEDIO AMBIENTE Subsección 2 Atestados Artículos L437-4 a
L437-5
Artículo L437-4 Las infracciones a las disposiciones del presente título y de los reglamentos dictados para su aplicación serán
comprobadas por atestados que darán fe de los hechos materiales relativos a las infracciones, salvo prueba en contrario o, si los mismos hubieran sido levantados y firmados por dos funcionarios o agentes, mientras no se compruebe lo contrario mediante prueba de falsedad.
Artículo L437-5 (Disposición nº 2005-805 de 18 de julio de 2005 art. 10 Diario Oficial de 19 de julio de 2005 modificado por el Diario Oficial de la República Francesa de 23 de julio de 2005)
Dichos atestados deberán ser remitidos al Fiscal de la República dentro de los cinco días siguientes a su incoación, bajo pena de nulidad.
Se remitirá una copia de los mismos, dentro dicho plazo, al interesado, a la autoridad administrativa, al Presidente de la Federación Departamental de las asociaciones autorizadas de pesca y piscicultura y al Presidente de la asociación autorizada de pescadores profesionales de agua dulce.
Subsección 3 Investigación de las infracciones Artículos L437-6 a
L437-12
Artículo L437-6 Los funcionarios y agentes designados en el artículo L.437-1 podrán investigar la pesca, tenencia, transporte o
comercio de peces infringiendo lo dispuesto en el presente título o en los reglamentos dictados para su aplicación, en cualquier época del año e incluso por la noche en los lugares abiertos al público donde los peces fueran comercializados o consumidos y, si se tratara de lugares que no están abiertos al público, en los depósitos, almacenes frigoríficos y conserveras.
En locales que no sean los mencionados en el párrafo anterior, solamente se aplicarán las disposiciones del Código de Proceso PenaL.No obstante, los funcionarios y agentes mencionados en el artículo L.437-1 asistirán a los funcionarios de la policía judicial que realizaran las investigaciones, previa solicitud de éstos.
Artículo L437-7 Los pescadores tendrán la obligación de arrimar su barco y abrir sus cabinas, cámaras frigoríficas, depósitos,
jaulas flotantes, cofres, cestos y demás recipientes y contenedores de peces vivos, cuando así lo pidieran los funcionarios y agentes encargados de ejercer las funciones de policía de pesca.
Además, estos funcionarios y agentes podrán proceder a la inspección de las vías de agua que pasan por los molinos y de las instalaciones fijas construidas en los cursos de agua.
Artículo L437-8 Los contramaestres, los empleados de balizamiento y los marineros de navegación fluvial tendrán que aceptar la
inspección de sus barcos y tripulaciones llevadas a cabo por los funcionarios y agentes encargados de ejercer las funciones de policía de pesca, en los lugares donde atraquen.
Artículo L437-9 Los funcionarios y agentes encargados de ejercer las funciones de policía de pesca podrán requerir directamente
el auxilio de la fuerza pública para reprimir las infracciones en materia de pesca, así como para incautar los instrumentos de pesca utilizados ilícitamente y las embarcaciones, automóviles y demás vehículos citados en el artículo L.437-10.
Artículo L437-10 Los funcionarios y agentes mencionados en el artículo L.437-1 deberán incautar las cañas, redes, aparejos y
demás artes de pesca prohibidos y estarán facultados para incautar aquéllos que, aunque no estuvieran prohibidos, se utilizaran infringiendo lo dispuesto en el presente título y en los reglamentos dictados para su aplicación. Además, podrán incautar las embarcaciones, automóviles y demás vehículos utilizados por los infractores para desplazarse al lugar donde se hubiera cometido la infracción o para transportar los peces capturados, ofrecidos en venta, vendidos o comprados infringiendo lo dispuesto en el presente título y en los reglamentos dictados para su aplicación.
Artículo L437-11 Los funcionarios y agentes mencionados en el artículo L.437-1 tendrán que proceder a la incautación de la pesca,
tanto de la que se hallara en poder del infractor, como de la que fuera transportada, vendida o comprada infringiendo lo dispuesto en el presente título y en los reglamentos dictados para su aplicación. La pesca incautada será o bien devuelta al agua o destruida, o bien vendida en beneficio del Tesoro o donada por la administración a una institución benéfica.
Artículo L437-12 El infractor tendrá la obligación de entregar el objeto de la incautación a petición del funcionario o del agente que
hubiera comprobado la infracción.
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CÓDIGO DE MEDIO AMBIENTE Subsección 4 Guardas de pesca particulares Artículo L437-13
Artículo L437-13 Los guardas de pesca particulares jurados comprobarán por medio de atestados las infracciones a las
disposiciones del presente título y de los reglamentos dictados para su aplicación que causaran perjuicios a los titulares de derechos de pesca que los hubieran contratado.
Lo dispuesto en el artículo 29 del Código de Proceso Penal será de aplicación a estos atestados y los hechos recogidos en los mismos se presumirán ciertos, salvo prueba en contrario.
Lo dispuesto en los artículos L.437-7 párrafo primero, L.437-9, L.437-10 en lo que se refiere a la incautación de los instrumentos de pesca, L.437-11 y L.437-12 será de aplicación a los guardas de pesca particulares jurados.
Sección II Transacción Artículo L437-14
Artículo L437-14 (Disposición nº 2005-805 de 18 de julio de 2005 art. 11 Diario Oficial de 19 de julio de 2005)
Con respecto a las infracciones a las disposiciones del presente título y de los reglamentos dictados para su aplicación, la Autoridad Administrativa encargada de la pesca en agua dulce podrá transigir, previo acuerdo del Fiscal de la República, con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Esta facultad no se aplicará a las faltas leves para las que acción pública se extinguiera mediante el pago de una multa a tanto alzado en aplicación del artículo 529 del Código de Proceso Penal.
La acción pública se extinguirá cuando el autor de la infracción hubiera ejecutado, en los plazos establecidos, las obligaciones derivadas de la aceptación de la transacción.
Para las infracciones mencionadas en el artículo L. 432-2, relativas a las empresas citadas en el título I del libro V del presente Código, se solicitará obligatoriamente la opinión del inspector de instalaciones clasificadas antes de cualquier transacción acerca de las condiciones en las que el infractor hubiera aplicado las disposiciones del título I del libro V.
Sección III Acciones judiciales Artículos L437-15 a
L437-17
Artículo L437-15 Los funcionarios nombrados a estos efectos por vía reglamentaria ejercerán, conjuntamente con el Ministerio
Público, todas las acciones judiciales y acciones de reparación de daños causados por estas infracciones, a excepción de las infracciones relativas a la prohibición de practicar la pesca sin el permiso del titular del derecho de pesca.
Artículo L437-16 Los funcionarios mencionados en el artículo L.437-15 podrán ser oídos por el tribunal que estuviera conociendo de
la infracción y sus conclusiones serán tenidas en cuenta. En nombre de su administración, podrán apelar las sentencias y recurrir las resoluciones y sentencias en última
instancia.
Artículo L437-17 Los agentes destinados en el Consejo Superior de Pesca y los técnicos del Estado encargados de los bosques
podrán, en las diligencias y procedimientos judiciales ejercidos en nombre de la Administración, realizar todas las citaciones y notificaciones de citaciones, sin proceder a la incautación de bienes muebles para su venta.
Sección IV Acción civil Artículo L437-18
Artículo L437-18 Las Federaciones Departamentales de asociaciones autorizadas de pesca y piscicultura y las asociaciones
autorizadas de pescadores profesionales tendrán la condición de parte procesal legítima respecto a los hechos que constituyeran una infracción tanto a las disposiciones del presente título como a los reglamentos dictados para su aplicación y que perjudicaran de modo directo o indirecto los intereses colectivos cuya defensa y representación les correspondiese.
Sección V Sanciones Artículos L437-19 a
L437-23
Subsección 1 Circunstancias agravantes Artículo L437-19
Artículo L437-19 Las penas podrán ser aumentadas al doble cuando los delitos hubieran sido cometidos de noche.
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CÓDIGO DE MEDIO AMBIENTE Subsección 2 Sanción pecuniaria Artículo L437-20
Artículo L437-20 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-204 de 9 de marzo de 2004 art. 198 Diario Oficial de 10 de marzo de 2004 con entrada en vigor el 1 de enero de 2005) (Disposición nº 2005-805 de 18 de julio de 2005 art. 22 II bajo reserva Diario Oficial de 19 de julio de 2005)
El tribunal, en aplicación de los artículos L. 431-6, L. 432-4, L. 432-8 y L. 436-6, podrá sancionar al infractor con una multa de 15 a 300 euros por día de retraso en la ejecución de las medidas y obligaciones que se le hubieran impuesto.
La sanción pecuniaria cesará cuando estas últimas hubieran sido ejecutadas en su totalidad. El Tribunal procederá en dicho momento a su liquidación a petición del interesado y la sanción será recaudada por el contable del Tesoro como una multa penal.
No dará lugar a prisión cautelar por impago de deudas. NOTA: Disposición 2005-805 de 18 de julio de 2005 art. 22 II: La referencia al artículo L. 431-6 realizada en el
artículo L. 437-20 ha sido derogada en la fecha de publicación del decreto citado en el punto I del presente artículo.
Subsección 3 Confiscación Artículo L437-21
Artículo L437-21 Las cañas, redes y aparejos que hubieran sido incautados por ser de uso prohibido serán entregados en la
Secretaría del tribunal y, tras la firmeza de la sentencia definitiva, serán entregados a la Administración encargada de la pesca en agua dulce para su destrucción.
Podrán ser confiscadas las cañas, redes y aparejos incautados que no fueran de uso prohibido, así como las embarcaciones, automóviles y demás vehículos incautados utilizados por los infractores. Se podrá ordenar la confiscación de la suma dineraria correspondiente al valor venal de las embarcaciones, automóviles y demás vehículos.
Si no se ordenara la confiscación o se ordenara la confiscación del valor sustitutivo, se procedería a la restitución de los objetos y vehículos incautados.
Subsección 4 Exclusión de las asociaciones autorizadas Artículo L437-22
Artículo L437-22 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Toda sentencia o resolución condenatoria por infracción en materia de pesca, a excepción de las infracciones a la prohibición de practicar la pesca sin el permiso del titular del derecho de pesca, podrá excluir al inculpado de las asociaciones autorizadas de pesca durante un período que no podrá ser inferior a un año ni superior a tres. En caso de reincidencia, esta exclusión tendrá una duración mínima de dos años y no podrá exceder de cinco años. Cuando el infractor fuera un pescador profesional en el ejercicio de su actividad, el tribunal podrá ordenar su exclusión de las asociaciones autorizadas de pescadores profesionales durante un período que no podrá ser superior a dos años. En caso de reincidencia, esta exclusión no podrá exceder de cinco años.
El que, durante el período en el que estuviera excluido de dichas asociaciones, se dedicare a practicar la pesca, será sancionado con una multa de 3.750 euros. Las cañas, redes y aparejos serán confiscados.
Subsección 5 Responsabilidad de las personas jurídicas Artículo L437-23
Artículo L437-23 I. - Las personas jurídicas podrán ser declaradas penalmente responsables en las condiciones previstas en el
artículo 121-2 del Código Penal de las infracciones a lo dispuesto en el capítulo II del presente título. II. - Las penas a las que se exponen las personas jurídicas son: 1° La multa, en las condiciones previstas en el artículo 131-38 del Código Penal; 2° Las penas mencionadas en los apartados 2°, 3°, 4°, 5°, 6°, 8° y 9° del artículo 131-39 del mismo Código. III. - La inhabilitación mencionada en el apartado 2º del artículo 131-39 del mismo Código se refiere a la actividad
en cuyo ejercicio o con ocasión de cuyo ejercicio se hubiera cometido la infracción.
Capítulo VIII Disposiciones diversas Artículos L438-1 a
L438-2
Artículo L438-1 Las leyes y reglamentos relativos a la pesca fluvial tendrán carácter ejecutorio a partir del 1 de enero de 1946 en
los departamentos de Bajo-Rin, de Alto-Rin y de Moselle, sin perjuicio de la aplicación de los Convenios Internacionales de 30 de junio de 1885, de 18 de mayo de 1887 y de 19 de diciembre de 1890.
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CÓDIGO DE MEDIO AMBIENTE Artículo L438-2
Un decreto adoptado en Conseil d'Etat determinará, en tanto sea necesario, las condiciones de aplicación del presente título.
LIBRO V Prevención de las contaminaciones, de los riesgos y de los daños Artículos L511-1 a
L582-1 Título I Instalaciones clasificadas para la protección del medio ambiente Artículos L511-1 a
L517-2
Capítulo I Disposiciones generales Artículos L511-1 a
L511-2
Artículo L511-1 (Ley nº 2001-44 de 17 de enero de 2001 art. 11 IV Diario Oficial de 18 de enero de 2001)
Estarán sujetos a las disposiciones del presente título las fábricas, los talleres, los depósitos, los lugares de obras y, de manera general, aquellas instalaciones que fuesen explotadas o estuviesen en posesión de cualquier persona física o jurídica, tanto pública como privada, que pudieran crear peligros o inconvenientes ya sea para el bienestar de los vecinos o para la protección de la naturaleza y el medio ambiente, ya para la conservación de los espacios naturales, monumentos y elementos del patrimonio arqueológico.
Lo dispuesto en el presente título será igualmente aplicable a las explotaciones de canteras en el sentido de los artículos 1 y 4 del Código de Minería.
Artículo L511-2 Las instalaciones mencionadas en el artículo L.511-1 están definidas en el catálogo de instalaciones clasificadas
establecido por decreto adoptado en Conseil d'Etat, en base al informe del Ministro competente en materia de instalaciones clasificadas y previo dictamen del Consejo Superior de Instalaciones Clasificadas. Este decreto someterá las instalaciones a autorización o a declaración, en función de la gravedad de los peligros o inconvenientes que pudiera generar su explotación.
Capítulo II Instalaciones sujetas a autorización o a declaración Artículos L512-1 a
L512-19
Sección I Instalaciones sujetas a autorización Artículos L512-1 a
L512-7
Artículo L512-1 (Ley nº 2003-699 de 30 de julio de 2003 art. 4, art. 25 Diario Oficial de 31 de julio de 2003) (Ley nº 2006-11 de 5 de enero de 2006 art. 77 Diario Oficial de 6 de enero de 2006)
Estarán sujetas a autorización prefectoral las instalaciones susceptibles de crear graves peligros o inconvenientes para los intereses citados en el artículo L. 511-1.
La autorización podrá ser concedida solamente si dichos peligros o inconvenientes se pudieran prevenir con medidas especificadas en la orden prefectoral.
El solicitante entregará un estudio de peligrosidad que especifique los riesgos, directos e indirectos, a los que la instalación pudiera exponer los intereses citados en el artículo L. 511-1 en caso de accidente, ya fuera por causa interna o externa de la instalación.
El contenido del estudio de peligrosidad deberá se acorde a la importancia de los riesgos originados por la instalación. En tanto fuera necesario, este estudio comportará un análisis de riesgos que tendrá en consideración la probabilidad de acaecimiento, la cinética y la gravedad de los accidentes potenciales siguiendo una metodología que quedará expuesta en el mismo.
Definirá y explicará las medidas oportunas para reducir la probabilidad y los efectos de dichos accidentes. La concesión de autorización para dichas instalaciones podrá estar supeditada en particular a su alejamiento de
viviendas, edificios habitualmente ocupados por terceras personas, establecimientos abiertos al público, cursos de agua, vías de comunicación, captaciones de agua y zonas destinadas a vivienda en virtud de planes de urbanismo oponibles a terceros. Tendrá en consideración la capacidad técnica y financiera del solicitante para llevar a cabo su proyecto respetando los intereses citados en el artículo L. 511-1 y para cumplir con las obligaciones del artículo L. 512-17 tras el cese de su actividad.
Artículo L512-2 (Disposición nº 2004-637 de 8 de diciembre de 2005 art. 28 Diario Oficial de 9 de diciembre de 2005 con entrada en vigor el 1 de julio de 2007)
La autorización prevista en el artículo L. 512-1 será concedida por el Prefecto, tras consulta pública relativa a los
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CÓDIGO DE MEDIO AMBIENTE posibles impactos del proyecto sobre los intereses mencionados en el artículo L. 511-1 y previo dictamen de los Consejos municipales interesados. Se consultará igualmente una Comisión Departamental, que podrá variar de acuerdo con el carácter de las instalaciones consideradas y su composición, la cual será fijada por decreto adoptado en Conseil d'Etat. Dicha comisión estará integrada en particular por representantes del Estado, de las entidades territoriales, de las profesiones interesadas, de las asociaciones de protección del medio ambiente y por personas competentes. Cuando los riesgos pudieran afectar a varios departamentos o regiones, la autorización será concedida por el Ministro competente en materia de instalaciones clasificadas, previo dictamen del Consejo Superior de Instalaciones Clasificadas.
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del párrafo anterior. Se establecerán, además, las condiciones en las que se debiera consultar a los Consejos Generales o Regionales y las formas de dicha consulta.
Si se hubiera solicitado una licencia de obra, ésta podrá concederse pero no podrá ejecutarse antes de la finalización del período de consulta pública.
Artículo L512-3 Las condiciones de instalación y explotación que se consideren imprescindibles para la protección de los intereses
mencionados en el artículo L.511-1, los medios de análisis y de medida así como los medios de intervención en caso de siniestro, quedarán establecidos en la resolución de autorización y, eventualmente, en resoluciones complementarias adoptadas con posterioridad a dicha autorización.
Artículo L512-4 En el caso de las instalaciones cuya explotación durante un período ilimitado supusiera peligros o inconvenientes
inaceptables para los intereses mencionados en el artículo L.511-1, debido a un uso creciente del suelo o subsuelo, la autorización tendrá que fijar el período máximo de duración de la explotación o de la fase de explotación correspondiente y, en su caso, el volumen máximo de productos almacenados o extraídos, así como también las condiciones de restauración del lugar al término de la explotación.
Un decreto adoptado en Conseil d'Etat definirá las condiciones de aplicación de este artículo y, en particular, las categorías de instalaciones citadas en el mismo.
Artículo L512-5 Para la protección de los intereses mencionados en el artículo L.511-1 y previa consulta con los Ministros
correspondientes y el Consejo Superior de Instalaciones Clasificadas, una orden del Ministro competente en materia de instalaciones clasificadas podrá establecer las normas generales y las prescripciones técnicas que fueran aplicables a las instalaciones sujetas a lo dispuesto en la presente sección. Estas normas y prescripciones determinarán las medidas oportunas para prevenir y reducir los riesgos de accidente o de contaminación de cualquier índole que pudieran producirse, así como las condiciones de inserción de la instalación en el medio ambiente y de restauración de los espacios tras el cese de la explotación.
Estas resoluciones serán de obligado cumplimiento en las instalaciones nuevas. Indicarán los plazos y las condiciones en los que se aplicarán a las instalaciones existentes tras el dictamen de las organizaciones profesionales interesadas. Determinarán asimismo las condiciones en las que algunas de estas normas pudieran ser adaptadas por orden prefectoral a las circunstancias locales.
Artículo L512-6 En los municipios que pertenezcan a una zona de producción de vinos de denominación de origen, la autoridad
competente para conceder la autorización consultará al Instituto Nacional de Denominaciones de Origen. A instancia de la autoridad administrativa, el Instituto será consultado siempre que se abriese una instalación sujeta
a la autorización anteriormente citada, en un municipio limítrofe de otro que forme parte de una zona de producción de vinos de denominación de origen.
Será consultado igualmente, a instancia de dicha autoridad, siempre que se abriese una instalación sujeta a la autorización anteriormente citada en un municipio, o municipio limítrofe, que forme parte de una zona de producción de un producto con denominación de origen controlada diferente al vino.
El Instituto Nacional de Denominaciones de Origen dispondrá de un plazo de tres meses para emitir su dictamen. Este plazo contará a partir de la fecha en la que la autoridad competente le someta la consulta. Transcurrido dicho plazo, se considerará que el dictamen es favorable.
Artículo L512-7 (Ley nº 2003-699 de 30 de julio de 2003 art. 26 Diario Oficial de 31 de julio de 2003)
A fin de proteger los intereses citados en el artículo L.511-1, el Prefecto podrá ordenar la realización de las evaluaciones de impacto ambiental y la aplicación de los medios correctivos que fueran necesarios para paliar las consecuencias de un accidente o incidente que acaeciera en la instalación, las consecuencias que conllevara el incumplimiento de las condiciones impuestas en aplicación del presente título, o cualquier otro peligro o inconveniente que perjudicara o fuera susceptible de perjudicar los intereses antes citados. Estas medidas serán impuestas por orden adoptada previa aprobación de la Comisión Departamental Consultiva competente, salvo en caso de urgencia.
Sección II Instalaciones sujetas a declaración Artículos L512-8 a
L512-13
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CÓDIGO DE MEDIO AMBIENTE Artículo L512-8
Estarán sujetas a declaración las instalaciones que, sin ser susceptibles de producir graves peligros o inconvenientes para los intereses citados en el artículo L.511-1, tuvieran que cumplir no obstante con las disposiciones generales ordenadas por el Prefecto a fin de garantizar en el departamento la protección de los intereses citados en el artículo L.511-1.
Artículo L512-9 Las prescripciones generales previstas en el artículo L.512-8, serán establecidas por orden prefectoral, adoptada
previo dictamen de la Comisión Departamental Consultiva competente y, para las instalaciones dedicadas al cultivo sin suelo, de la Comisión Departamental de Orientación de la Agricultura. Serán aplicadas de manera automática a cualquier instalación nueva o sujeta a nueva declaración.
Las posteriores modificaciones de estas disposiciones generales podrán ser aplicables a las instalaciones existentes con arreglo a los procedimientos y plazos previstos en la orden prefectoral, la cual establecerá igualmente las condiciones en las que las disposiciones generales podrán ser adaptadas a las circunstancias locales.
Los establecimientos sujetos a declaración bajo el régimen de la Ley de 19 de diciembre de 1917 y que hubieran obtenido, en virtud del párrafo primero o cuarto del artículo 19 de dicha Ley, la supresión o atenuación de una o varias disposiciones derivadas de una orden prefectoral, conservarán el beneficio de tales excepciones. No obstante, se podrá suprimir dicho beneficio por orden prefectoral adoptada previo dictamen de la Comisión Departamental Consultiva competente y con arreglo a los procedimientos y plazo fijados en dicha orden.
Artículo L512-10 Para la protección de los intereses mencionados en el artículo L.511-1 y tras la consulta de los Ministros
interesados y del Consejo Superior de las Instalaciones Clasificadas, por órdenes del Ministro competente en materia de instalaciones clasificadas se podrán establecer las disposiciones generales aplicables a determinadas categorías de instalaciones sujetas a declaración.
Dichas órdenes serán de obligado cumplimiento para las instalaciones nuevas. Previo dictamen de las organizaciones profesionales interesadas, indicarán los plazos y condiciones aplicables a
las instalaciones existentes. Especificarán asimismo las condiciones en las que por orden prefectoral dichas disposiciones pudieran ser adaptadas a las circunstancias locales.
Artículo L512-11 Determinadas categorías de instalaciones contempladas en la presente sección y definidas por decreto adoptado
en Conseil d'Etat en función de los riesgos que presenten, podrán ser sometidas a controles periódicos que permitan al titular de la explotación comprobar que sus instalaciones funcionan con arreglo a las condiciones requeridas por la reglamentación. Estos controles serán llevados a cabo por organismos autorizados y serán por cuenta del titular de la explotación.
Un decreto adoptado en Conseil d'Etat precisará las condiciones de aplicación del presente artículo. Establecerá especialmente la periodicidad, las condiciones de funcionamiento del sistema de control y, en particular, las condiciones de autorización de los organismos controladores y las condiciones de puesta a disposición de la Administración de los resultados obtenidos.
Artículo L512-12 Si los intereses mencionados en el artículo L.511-1 no estuvieran garantizados por el cumplimiento de las
disposiciones generales contra los inconvenientes inherentes a la explotación de una instalación sujeta a declaración, una orden prefectoral, eventualmente a solicitud de terceros interesados y previo dictamen de la Comisión Departamental Consultiva competente, podrá imponer todas las disposiciones especiales que fueren necesarias.
A fin de proteger los intereses citados en el artículo L.511-1, el Prefecto podrá ordenar la realización de las evaluaciones de impacto ambiental y la aplicación de los medios correctivos que fueran necesarios para paliar las consecuencias de un accidente o incidente acaecido en la instalación o las consecuencias provocadas por el incumplimiento de las condiciones impuestas en aplicación del presente capítulo. Estas medidas serán impuestas por orden adoptada previa aprobación de la Comisión Departamental Consultiva competente, salvo en caso de urgencia.
Artículo L512-13 Las instalaciones sujetas a declaración en virtud del presente título, que se beneficiaran de una autorización
legalmente concedida antes de la fecha de entrada en vigor de la Ley de 19 de diciembre de 1917, estarán exentas de cualquier declaración y estarán sujetas a lo dispuesto en los artículos L.512-9 y L.512-12.
Sección III Disposiciones comunes a la autorización y a la declaración Artículos L512-14 a
L512-19
Artículo L512-14 Cuando las disposiciones adoptadas en aplicación del presente título se refieran a los residuos, deberán tener en
cuenta los objetivos contemplados en el artículo L.541-1.
Artículo L512-15 El titular de la explotación tendrá que presentar la solicitud de autorización o su declaración a la vez que su
solicitud de licencia de obra.
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CÓDIGO DE MEDIO AMBIENTE Tendrá que renovar la solicitud de autorización o la declaración en caso de transferencia, ampliación o
transformación de sus instalaciones, o en caso de modificación de los procedimientos de fabricación, cuando supusiera alguno de los peligros o inconvenientes mencionados en el artículo L.511-1.
Artículo L512-16 Un decreto adoptado en Conseil d'Etat definirá los casos y las condiciones en los que el cambio de titularidad de la
explotación esté sujeto a autorización prefectoral, concedida atendiendo a la capacidad técnica y financiera necesaria para llevar a cabo la actividad o restaurar el lugar cumpliendo con lo dispuesto para la protección de los intereses citados en el artículo L.511-1.
Artículo L512-17 (Introducido por la Ley nº 2003-699 de 30 de julio de 2003 art. 27 Diario Oficial de 31 de julio de 2003)
Tras el cese definitivo de explotación de la instalación, su titular restaurará los espacios dejándolos en un estado que no lesione los intereses mencionados en el artículo L.511-1 y que permita en el futuro la utilización de los espacios que determinen conjuntamente el titular de la explotación conjuntamente y el Alcalde o el Presidente de la entidad pública de cooperación intermunicipal competente en materia de urbanismo y, en ausencia del titular de la explotación, el propietario del terreno donde está situada la instalación.
A falta de acuerdo entre las personas mencionadas en el párrafo primero, tras el cese de explotación definitivo de la instalación, el titular de su explotación restaurará los espacios dejándolos en un estado que no lesione los intereses mencionados en el artículo L.511-1 y que permita en el futuro la utilización de dichos espacios de manera semejante a la del último período de explotación de la instalación cuya actividad hubiera cesado.
No obstante, en caso de que la restauración prevista en aplicación del párrafo anterior fuera manifiestamente incompatible con la futura utilización de la zona, en particular desde el punto de vista de los documentos de urbanismo en vigor en la fecha en la que el titular de la explotación comunicara a la administración su decisión de proceder definitivamente al cese de explotación de la instalación y la utilización de los terrenos aledaños al lugar, el Prefecto podrá determinar, previa consulta con las personas mencionadas en el párrafo primero, disposiciones de rehabilitación más restrictivas que permitan una utilización del lugar más coherente con dichos documentos de urbanismo.
En el caso de un nuevo emplazamiento en el que las instalaciones hubieran sido autorizadas más de seis meses después de la publicación de la Ley nº 2003-699 de 30 de julio de 2003 relativa a la prevención de los riesgos tecnológicos y naturales y a la reparación de los daños, la resolución que conceda la autorización determinará, previa consulta con las personas mencionadas en el párrafo primero, el estado al que deberán ser repuestos los espacios tras el cese definitivo de explotación.
Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente artículo.
Artículo L512-18 (Introducido por la Ley nº 2003-699 de 30 de julio de 2003 art. 28 Diario Oficial de 31 de julio de 2003)
El titular de la explotación de una instalación clasificada incluida en las categorías citadas en el artículo L.516-1, deberá llevar un informe sobre el estado de contaminación de los suelos en los que esté situada la instalación, y deberá actualizar dicho informe cada vez que se produzca un cambio notable en las condiciones de explotación. El titular de la explotación enviará este informe al Prefecto, al Alcalde del municipio afectado y, en su caso, al Presidente de la entidad pública de cooperación intermunicipal competente en materia de urbanismo, así como también al propietario del terreno sobre el que está situada la instalación. El último informe realizado se adjuntará a cualquier promesa unilateral de venta o de compra y a cualquier contrato por el que se realice el acto de la venta o se consigne la venta de los terrenos en los que esté situada la instalación clasificada.
Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente artículo.
Artículo L512-19 (Introducido por la Ley nº 2003-699 de 30 de julio de 2003 art. 29 Diario Oficial de 31 de julio de 2003)
Cuando una instalación no hubiera sido explotada durante tres años consecutivos, el Prefecto podrá dirigir un requerimiento al titular de la explotación instándole a proceder al cese definitivo de su explotación.
Capítulo III Instalaciones que ejercen sus actividades en virtud de derechos adquiridos Artículo L513-1
Artículo L513-1 Las instalaciones que estén sujetas a autorización o a declaración, en virtud de un decreto relativo al catálogo de
instalaciones clasificadas, podrán seguir funcionando sin esta autorización o declaración, tras haber sido puestas en funcionamiento legalmente, con la única condición de que el titular de la explotación lo haya puesto en conocimiento del Prefecto o lo ponga en conocimiento del mismo durante el año siguiente al de la publicación del decreto.
La información que el titular de la explotación tenga que transmitir al Prefecto, así como las medidas que éste pueda imponer para salvaguardar los intereses mencionados en el artículo L.511-1, serán establecidas por decreto adoptado en Conseil d'Etat.
Capítulo IV Control y procedimientos contencioso-administrativos relacionados con las
instalaciones clasificadas Artículos L514-1 a L514-20
Sección I
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CÓDIGO DE MEDIO AMBIENTE Control y sanciones administrativas Artículos L514-1 a
L514-8
Artículo L514-1 I.- Independientemente de las acciones penales que se puedan ejercer, y siempre que un inspector de
instalaciones clasificadas o un perito designado por el Ministro competente en materia de instalaciones clasificadas tuviera constancia del incumplimiento de las condiciones impuestas al titular de la explotación de una instalación clasificada, el Prefecto dirigirá un requerimiento a este último instándole a cumplir esas condiciones en un plazo determinado. Transcurrido dicho plazo, si el titular de la explotación no hubiera cumplido dicho requerimiento, el Prefecto podrá:
1° Obligar al titular de la explotación a consignar ante un contable público una suma correspondiente al valor del importe de los trabajos a realizar, la cual será restituida al titular de la explotación conforme vaya procediendo a la ejecución de las medidas impuestas. Se procederá, en su caso, a la recaudación de esta suma en las mismas condiciones que las establecidas en materia de créditos que no sean relativos al impuesto y al patrimonio. Para el cobro de esta suma, el Estado ostenta un privilegio en los mismos términos que el que está contemplado en el artículo 1920 del Código General de Impuestos;
2° Ordenar que de oficio y por cuenta del titular de la explotación se proceda a la ejecución de las medidas impuestas;
3° Suspender, mediante una orden y previo dictamen de la Comisión Departamental Consultiva competente, el funcionamiento de la instalación, hasta el cumplimiento de las condiciones impuestas y adoptar las disposiciones provisionales que fueren necesarias.
II. - Las sumas consignadas en aplicación de lo dispuesto en el apartado 1º del punto I podrán ser utilizadas para pagar los gastos derivados de la ejecución de oficio de las medidas previstas en los apartados 2º y 3º del punto I.
III. - Cuando la orden de ejecución dictada en aplicación de una medida de consignación ordenada por la autoridad administrativa fuera objeto de oposición ante el Juez del Tribunal Administrativo, el Presidente del Tribunal Administrativo o el Magistrado en quien éste delegue, resolviendo en procedimiento sumario, podrá decidir a pesar de esta oposición y a solicitud del representante del Estado o de cualquier persona interesada, que el recurso no tenga efecto suspensivo, si ninguna de las causas alegadas por el titular de la explotación le pareciera procedente. El Presidente del Tribunal resolverá en el plazo de quince días a partir de la interposición de la demanda.
Artículo L514-2 Cuando una instalación clasificada fuera explotada sin haber sido objeto de la declaración o de la autorización
requerida por el presente título, el Prefecto dirigirá al titular de la explotación un requerimiento instándole a regularizar su situación dentro de un plazo determinado presentando, según el caso, una declaración o una solicitud de autorización. Mediante orden motivada podrá suspender la explotación de la instalación hasta que se presente la declaración o hasta que se emita la decisión relativa a la solicitud de autorización.
Si el titular de la explotación no procediera a regularizar su situación conforme a lo ordenado en el requerimiento o si su solicitud de autorización fuera denegada, el Prefecto podrá ordenar, en caso de necesidad, el cierre o el desmantelamiento de la instalación. Transcurrido el plazo del requerimiento sin que el titular de la explotación hubiera cumplido lo ordenado, el Prefecto podrá proceder a la aplicación de los procedimientos contemplados en los apartados 1º y 2º del punto I del artículo L.514-1.
El Prefecto podrá pedir a un agente de la fuerza pública que proceda a precintar una instalación que continúe funcionando ya sea infringiendo una medida de desmantelamiento, de cierre o de suspensión adoptada en aplicación del artículo L.514-1, del artículo L.514-7, o de los dos primeros párrafos del presente artículo, ya sea a pesar de una resolución denegando la autorización.
Artículo L514-3 Durante el período de la suspensión de la explotación de la instalación ordenada en aplicación de los artículos
L.514-1 o L.514-2, el titular de la explotación estará obligado a garantizar a su personal el pago de los salarios, indemnizaciones y remuneraciones de toda clase a los que éste tuviera derecho hasta la fecha.
Artículo L514-4 Cuando la explotación de una instalación no incluida en el catálogo de instalaciones clasificadas presentara
peligros o inconvenientes graves para los intereses mencionados en el artículo L.511-1, el Prefecto dirigirá un requerimiento al titular de la explotación, previa consulta con el Alcalde y la Comisión Departamental Consultiva competente, salvo en caso de urgencia, instándole a adoptar las medidas necesarias para eliminar los peligros o los inconvenientes debidamente comprobados. Transcurrido el plazo otorgado sin que el titular de la explotación hubiera cumplido dicho requerimiento, se podrá proceder a la aplicación de las medidas contempladas en el artículo L.514-1.
Artículo L514-5 (Ley nº 2006-11 de 5 de enero de 2006 art. 96 Diario Oficial de 6 de enero de 2006)
Las personas encargadas de la inspección de las instalaciones clasificadas o de los peritajes prestarán juramento y estarán sujetas al secreto profesional en las condiciones y bajo pena de las sanciones previstas en los artículos 226-13 y 226-14 del Código Penal y, eventualmente, en los artículos 411-1 y siguientes de dicho Código.
En cualquier momento, podrán inspeccionar las instalaciones sujetas a su supervisión. Salvo que se tratase de controles sin previo aviso, los inspectores de las instalaciones clasificadas deberán
informar al titular de la explotación de su inspección con una antelación de cuarenta y ocho horas. Durante la
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CÓDIGO DE MEDIO AMBIENTE inspección, el titular de la explotación podrá beneficiarse de la asistencia de una tercera persona.
El agente encargado del control sólo podrá llevarse los documentos que juzgue convenientes tras la elaboración de una lista que deberá ser refrendada por el titular de la explotación. La lista especificará la naturaleza de dichos documentos, su nombre y si se trata de originales o de copias. Los documentos originales deberán ser restituidos al titular de la explotación de ganadería en el plazo de un mes tras la realización del control.
El inspector de instalaciones clasificadas informará al titular de la explotación sobre las consecuencias del control. Remitirá su informe al Prefecto y una copia al titular de la explotación, el cual podrá presentar al primero sus alegaciones.
Lo dispuesto en los tres párrafos anteriores sólo será de aplicación a los controles efectuados en aplicación de la presente sección.
Artículo L514-6 (Ley nº 2002-276 de 27 de febrero de 2002 art. 148 Diario Oficial de 28 de febrero de 2002) (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 15º Diario Oficial de 3 de julio de 2003) (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 15º Diario Oficial de 3 de julio de 2003) (Ley nº 2006-11 de 5 de enero de 2006 art. 15 Diario Oficial de 6 de enero de 2006) (Disposición nº 2005-1527 de 8 de diciembre de 2005 art. 34 III Diario Oficial de 9 de diciembre de 2005 con entrada en vigor el 1 de julio de 2007) (Ley nº 2006-11 de 5 de enero de 2006 art. 15 Diario Oficial de 6 de enero de 2006)
I. - Los recursos interpuestos contra las decisiones adoptadas en aplicación de los artículos L. 512-1, L. 512-3, L. 512-7, L. 512-8, L. 512-12, L. 512-13, L. 513-1 a L. 514-2, L. 514-4, L. 515-13 I y L. 516-1, serán competencia de la jurisdicción administrativa. Podrán recurrir ante la misma:
1° Los demandantes o titulares de las explotaciones, en el plazo de dos meses que empezará a contar desde la notificación de la resolución objeto de recurso;
2° Cualquier persona física o jurídica, los municipios interesados o sus agrupaciones, en razón de los inconvenientes o peligros que el funcionamiento de la instalación presentara para los intereses citados en el artículo L. 511-1, en el plazo de cuatro años a partir de la publicación o anuncio de dichos actos, pudiéndose ampliar dicho plazo, en su caso, hasta el término de un período de dos años a partir de la puesta en funcionamiento de la instalación.
II. - Las disposiciones del apartado 2º del punto I no serán aplicables a las decisiones relativas a la autorización de explotación de canteras, para las cuales el plazo de interposición de recurso será de seis meses a partir de la finalización de las formalidades de publicidad de la declaración de inicio de explotación remitida por el titular de la explotación al Prefecto.
Las mismas no serán aplicables a las decisiones relativas a las autorizaciones de explotación de instalaciones clasificadas de ganadería, vinculadas a la ganadería o que contribuyen al desempeño de servicios públicos locales o de servicios de interés general, para las cuales el plazo de interposición de recurso será de un año a partir de la finalización de las formalidades de publicidad de la declaración de inicio de explotación remitida por el titular de la explotación al Prefecto.
III. - Los recursos contra esta orden presentados por terceras personas que no hubieran adquirido o arrendado inmuebles, o que no hubieran edificado construcciones en los terrenos colindantes de una instalación clasificada hasta después del anuncio o la publicación de la orden autorizando la apertura de esta instalación o atenuando las disposiciones primitivas, no serán admitidos a trámite ante la jurisdicción administrativa.
IV. - La licencia de obra y la escritura de compraventa a terceros de bienes raíces e inmobiliarios deberán mencionar expresamente, en su caso, las servidumbres correspondientes constituidas en aplicación del artículo L. 111-1 del Código de Urbanismo.
Artículo L514-7 Si una instalación clasificada presentara, para los intereses mencionados en el artículo L.511-1, peligros o
inconvenientes desconocidos en el momento de su autorización o de su declaración, el Ministro competente en materia de instalaciones clasificadas podrá ordenar la suspensión de su explotación durante el período necesario para la adopción de las medidas oportunas que eliminen estos peligros o inconvenientes. Salvo en caso de urgencia, la suspensión se producirá previo dictamen de los órganos consultivos competentes y tras haber solicitado al titular de la explotación que presente sus alegaciones.
Un decreto adoptado en Conseil d'Etat previo dictamen del Consejo Superior de Instalaciones Clasificadas, podrá ordenar el cierre o el desmantelamiento de cualquier instalación, incluida o no en el catálogo, que presente para los intereses mencionados en el artículo L.511-1, peligros o inconvenientes de tal índole que las medidas contempladas en el presente título no pudieran eliminar.
Artículo L514-8 Los gastos correspondientes a la realización de los análisis, peritajes o controles necesarios para la aplicación del
presente título correrán por cuenta del titular de la explotación.
Sección II Disposiciones penales Artículos L514-9 a
L514-18
Artículo L514-9 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en
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CÓDIGO DE MEDIO AMBIENTE vigor el 1 de enero de 2002)
I. - El que explotare una instalación sin la autorización requerida será castigado con la pena de un año de prisión y una multa de 75.000 euros.
II. - En caso de condena, el tribunal podrá prohibir la utilización de la instalación. La prohibición dejará de tener efecto cuando con posterioridad se conceda una autorización con arreglo a las condiciones previstas por el presente título. Se podrá ordenar la ejecución provisional de dicha prohibición.
III. - Asimismo, el tribunal podrá exigir la restauración de los espacios en un plazo determinado. IV. - En este último caso, el tribunal podrá: 1° Bien, aplazar la imposición de la pena y acompañar el requerimiento de restauración del lugar de una sanción
pecuniaria cuya cuantía y duración máxima fijará. En este caso, se aplicará lo dispuesto en el artículo L.514-10 sobre el aplazamiento de la imposición de la pena;
2° O bien, ordenar que los trabajos de restauración del lugar sean ejecutados de oficio por cuenta de la persona sancionada.
Artículo L514-10 (Disposición nº 2004-204 de 9 de marzo de 2004 art. 198 Diario Oficial de 10 de marzo de 2004 con entrada en vigor el 1 de enero de 2005)
I. - En caso de condena a una sanción penal por infracción a lo dispuesto en las órdenes prefectorales o ministeriales previstas en el presente título o en los reglamentos dictados para su ejecución, el tribunal podrá prohibir la utilización de la instalación, hasta tanto se cumplan las disposiciones infringidas.
II. - El tribunal podrá aplazar la imposición de la pena, requiriendo al inculpado para que cumpla con dichas disposiciones.
El Tribunal otorgará un plazo para la ejecución de las disposiciones mencionadas en el requerimiento y podrá imponer junto al requerimiento una sanción pecuniaria fijando la cuantía y el período máximo de su aplicación.
El aplazamiento podrá otorgarse una sola vez y podrá ser acordado aunque el inculpado no comparezca personalmente. El Tribunal podrá ordenar la ejecución provisional de la resolución de aplazamiento.
III. - En la segunda vista, siempre que las disposiciones citadas en el requerimiento se hubieran cumplido en el plazo fijado, el Tribunal podrá o bien dispensar de pena al culpable, o bien imponer las penas previstas.
Cuando las disposiciones se hubieran cumplido con retraso, el Tribunal liquidará la sanción pecuniaria, si esta medida hubiera sido ordenada, e impondrá las penas previstas.
En caso de incumplimiento de las disposiciones, el Tribunal liquidará la sanción pecuniaria, siempre que esta medida hubiera sido ordenada, impondrá las penas y podrá ordenar, además, que se proceda de oficio al cumplimiento de dichas disposiciones por cuenta del condenado.
La resolución judicial que contenga la pena se publicará en el plazo fijado por el tribunal, teniendo en cuenta el plazo otorgado para el cumplimiento de las disposiciones.
IV - La cuantía de la sanción pecuniaria fijada en la resolución de aplazamiento no podrá ser modificada. Para la liquidación de la sanción pecuniaria, el órgano judicial valorará el incumplimiento o el retraso en el
cumplimiento de las disposiciones, teniendo en cuenta, si procede, la incidencia de acontecimientos no imputables al inculpado.
La sanción pecuniaria será recaudada por el contable del Tesoro como una multa penal. No dará lugar a prisión cautelar por impago de deudas.
Artículo L514-11 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-699 de 30 de julio de 2003 art. 29, art. 30 Diario Oficial de 31 de julio de 2003)
I. - El que explotare una instalación infringiendo una medida de cierre, desmantelamiento o suspensión adoptada en aplicación de los artículos L.514-1, L.514-2 o L.514-7, o infringiendo una medida de prohibición decretada en virtud de lo dispuesto en los artículos L.514-9 o L.513-10, o no cumpliere con lo ordenado en el requerimiento dirigido en aplicación del artículo L.512-19, será castigado con la pena de dos años de prisión y una multa de 150.000 euros.
II. - El que continuare explotando una instalación clasificada sin ajustarse al requerimiento de obligado cumplimiento, al término de un plazo fijado, de las prescripciones técnicas establecidas en aplicación de los artículos L.512-1, L.512-3, L.512-5, L.512-7, L.512-8, L.512-9 o L.512-12, será castigado con la pena de seis meses de prisión y una multa de 75.000 euros.
Será castigado con las mismas penas el que continuare explotando una instalación sin ajustarse al requerimiento formulado en aplicación del artículo L.514-4 por el Prefecto, previo dictamen del Alcalde y de la Comisión Departamental Consultiva competente.
III. - El que no se sometiere al requerimiento que le ordenara adoptar, en un plazo determinado, las medidas de vigilancia o de restauración de una instalación o del lugar donde estuviera situada, en aplicación de los artículos L.512-3, L.512-5, L.512-7, L.512-9, L.512-12, L.514-2, L.514-4 o L.514-7, será castigado con la pena de seis meses de prisión y una multa de 75.000 euros tras el cese de la actividad.
IV. - El que no cumpliere lo dispuesto en el párrafo primero del artículo L.516-2, será castigado con la pena de seis meses de prisión y una multa de 75.000 euros.
Artículo L514-12 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en
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CÓDIGO DE MEDIO AMBIENTE vigor el 1 de enero de 2002)
El que obstaculizare las funciones de las personas encargadas de la inspección o el peritaje de las instalaciones clasificadas, será castigado con la pena de un año de prisión y una multa de 15.000 euros.
Artículo L514-13 Las infracciones serán comprobadas por los atestados levantados por los funcionarios de la policía judicial y los
inspectores de las instalaciones clasificadas. Dichos atestados serán redactados en dos ejemplares de los que uno será remitido al Prefecto y el otro al Fiscal de la República. Los hechos recogidos en los atestados se presumirán ciertos, salvo prueba en contrario.
Artículo L514-14 El tribunal podrá ordenar la publicación o la difusión íntegra o parcial de la resolución dictada de conformidad con
las condiciones previstas por el artículo 131-35 del Código Penal.
Artículo L514-15 Durante el período que dure la prohibición de utilizar la instalación, ordenada en aplicación del artículo L.514-10, el
titular de la explotación estará obligado a garantizar a su personal el pago de los salarios, indemnizaciones y remuneraciones de toda clase a los que éste tuviera derecho hasta la fecha.
Artículo L514-16 Cuando las personas jurídicas de derecho público intervinieran, material o financieramente, para atenuar los daños
causados por un incidente o accidente originado por una instalación mencionada en el artículo L.511-2 o para evitar que se agraven estos daños, podrán exigir que las personas responsables del incidente o accidente les reembolsen los gastos que hubieran realizado, sin perjuicio de la indemnización de los demás daños sufridos. Por este concepto, podrán constituirse en parte civil ante las jurisdicciones penales competentes de las acciones judiciales iniciadas a consecuencia del incidente o accidente.
Esta acción será ejercida sin perjuicio de los derechos concedidos en virtud del artículo L.142-2 a las asociaciones que cumplen las condiciones establecidas en este artículo.
Artículo L514-17 Las penas previstas en la presente sección serán aplicables a las personas sujetas a las jurisdicciones militares de
las Fuerzas Armadas, de conformidad con lo dispuesto en el Código de Justicia Militar y, en especial, en sus artículos 165 y 171.
Artículo L514-18 I. - Las personas jurídicas podrán ser declaradas penalmente responsables de las infracciones definidas en los
artículos L.514-9 y L.514-11, en las condiciones previstas en el artículo 121-2 del Código Penal. II. - Las penas a las que se exponen las personas jurídicas son: 1° La multa, en las condiciones previstas en el artículo 131-38 del Código Penal; 2° Las penas mencionadas en los apartados 2°, 3°, 4°, 5°, 6°, 8° y 9° del artículo 131-39 del mismo Código. III. - La inhabilitación mencionada en el apartado 2º del artículo 131-39 del Código Penal se refiere a la actividad en
cuyo ejercicio o con ocasión de cuyo ejercicio se hubiera cometido la infracción.
Sección III Protección de derechos de terceros Artículos L514-19 a
L514-20
Artículo L514-19 Las autorizaciones serán concedidas sin perjuicio del respeto a los derechos de terceros.
Artículo L514-20 (Ley nº 2003-699 de 30 de julio de 2003 art. 35 Diario Oficial de 31 de julio de 2003)
Cuando una instalación sujeta a autorización haya sido explotada en un terreno, el vendedor de este terreno tendrá la obligación de informar de ello por escrito al comprador. Le informará igualmente de los peligros o inconvenientes importantes que se deriven de la explotación, en la medida en que éstos fueran de su conocimiento.
Si el vendedor fuera el titular de la explotación de la instalación, indicará también por escrito al comprador si su actividad hubiera implicado la manipulación o el almacenamiento de sustancias químicas o radiactivas. La escritura de compraventa acreditará el cumplimiento de dicha formalidad.
En caso contrario, el comprador tendrá la posibilidad de reclamar la rescisión del contrato de compraventa o de solicitar la restitución de una parte del precio. Podrá pedir, asimismo, la restauración del lugar por cuenta del vendedor, siempre que su coste n fuera desproporcionado con respecto al precio de venta.
Capítulo V Disposiciones especiales aplicables a determinadas instalaciones Artículos L515-1 a
L515-26
Sección I Canteras Artículos L515-1 a
L525-3
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CÓDIGO DE MEDIO AMBIENTE Artículo L515-1 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 16º Diario Oficial de 3 de julio de 2003) (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 16º Diario Oficial de 3 de julio de 2003) (Ley nº 2005-157 de 23 de febrero de 2005 art. 42 Diario Oficial de 24 de febrero de 2005) (Disposición nº 2004-637 de 1 de julio de 2004 art. 34-4 Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2006) (Ley nº 2004-1343 de 9 de diciembre de 2004 art. 78 XXXII 4° Diario Oficial de 10 de diciembre de 2004 con entrada en vigor el 1 de julio de 2005) (Ley nº 2005-157 de 23 de febrero de 2005 art. 42 Diario Oficial de 24 de febrero de 2005) (Disposición nº 2004-637 de 1 de julio de 2004 art. 34-4 Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2006) (Disposición nº 2005-1129 de 8 de septiembre de 2005 art. 1 Diario Oficial de 9 de septiembre de 2005)
La explotación de canteras estará sujeta a la autorización administrativa contemplada en el artículo L. 512-1, exceptuando las canteras de marga, creta o cualquier otro mineral margoso destinado a los campos de cultivo, o de arena granítica de pequeñas dimensiones y bajo rendimiento utilizadas a cielo abierto y sin fines comerciales, que estén situadas en un terreno propiedad de los titulares de la explotación o en la cantera municipal, las cuales estarán sujetas a las disposiciones aplicables a las instalaciones cuyo régimen de declaración se contempla en la sección 2 del capítulo II del presente título. Esta excepción será de aplicación a las canteras de piedra, arena y arcilla de pequeñas dimensiones que estén incluidas en el plan de conservación y revalorización de sectores protegidos en calidad de bienes inmuebles cuya demolición, extracción o alteración esté prohibida, o a la restauración de edificios antiguos cuyo interés patrimonial o arquitectónico justifique la utilización de materiales originales. La misma excepción será de aplicación a los sondeos realizados previamente a la apertura o extensión de canteras de mármol de pequeñas dimensiones y bajo rendimiento. Tanto las canteras de piedra, arena y arcilla como los sondeos estarán sujetos a controles periódicos, que serán llevados a cabo por los organismos autorizados citados en el artículo L. 512-11 y serán por cuenta del titular de la explotación.
El período de duración de la autorización administrativa citada en el párrafo anterior no podrá ser superior a treinta años.
Esta autorización no podrá exceder de quince años para los terrenos cuyo desbroce estuviera autorizado en aplicación de los artículos L. 311-1 o L. 312-1 del Código Forestal. No obstante, cuando la explotación de estos terrenos vaya asociada a una industria de transformación que requiera fuertes inversiones, el período de duración de la autorización de explotación podrá alcanzar los treinta años, tras el visto bueno de la Comisión Departamental competente en materia de naturaleza, paisajes y espacios naturales.
La autorización será renovable con arreglo a las formas contempladas en el artículo L. 512-2. Cualquier autorización de explotación de canteras estará sujeta, en los viñedos clasificados de denominación de
origen controlada, de vinos delimitados como de calidad superior y en las zonas de producción de vinos de la tierra, a la aprobación del Instituto Nacional de Denominaciones de Origen y de la Oficina Nacional Interprofesional de Vinos.
El período necesario para la realización de las operaciones de prospección y excavación arqueológica de carácter preventivo interrumpirá el período de duración de la autorización administrativa de explotación de cantera.
NOTA: Disposición 2005-1129 de 8 de septiembre de 2005: Lo dispuesto en el artículo 1° de la Disposición 2005-1129 será aplicable en Mayotte.
Artículo L515-2 (Disposición nº 2004-637 de 1 de julio de 2004 art. 34-4 Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2006) (Derogado por la Ley nº 2004-1343 de 9 de diciembre de 2004 art. 78 XXXII 4° Diario Oficial de 10 de diciembre de 2004 con entrada en vigor el 1 de julio de 2005)
I. - La Comisión Departamental de Canteras estará presidida por el Prefecto. Estará formada, a partes iguales, por: 1° Representantes de las administraciones públicas interesadas; 2° Cargos electos de las entidades territoriales; 3° Representantes de las profesiones de explotadores de canteras y de usuarios de materiales de canteras; 4° Representantes de asociaciones de protección del medio ambiente y de las profesiones agrícolas. II. - El Presidente del Consejo General será miembro de derecho de la Comisión. III. - La Comisión Departamental de Canteras estudiará las solicitudes de autorización de explotación de canteras
contempladas en los artículos L. 512-1 y L. 512-2 y emitirá un dictamen motivado sobre las mismas. IV. - Los Alcaldes de los municipios en cuyo territorio esté prevista la explotación de una cantera serán, además,
miembros de derecho de la Comisión cuando ésta estudie la solicitud de autorización de dicha explotación. NOTA: El artículo 34-4 de la Disposición n° 2004-637 de 1 de julio de 2004 ha sido introducido por el artículo 78
XXXII 4° de la Ley n° 2004-1343 de 9 de diciembre de 2004. El artículo 34-7 de la misma disposición, introducido por el artículo 78 XXXII 4° de la Ley n° 2004-1343 fija la
entrada en vigor el 1 de julio de 2005.
Artículo L515-3 El plan departamental de canteras definirá las condiciones generales de creación de las canteras en el
departamento. Tendrá en cuenta el interés económico nacional, los recursos y las necesidades de materiales del departamento y de los departamentos vecinos, la protección de los paisajes, espacios y medios naturales sensibles y la necesidad de una gestión equilibrada del espacio, favoreciendo a la vez un bajo consumo de materias primas.
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CÓDIGO DE MEDIO AMBIENTE Establecerá los objetivos que se deban alcanzar en materia de restauración y reacondicionamiento de los espacios naturales.
El plan departamental de canteras será elaborado por la Comisión Departamental de Canteras, previa consulta del documento de gestión del espacio agrícola y forestal citado en el artículo L.112-1 del Código Rural.
Será aprobado por el Prefecto previo dictamen del Consejo General y hecho público en las condiciones establecidas por decreto.
Las autorizaciones de explotación de canteras, concedidas en aplicación del presente título, tendrán que ser compatibles con este plan.
Artículo L515-4 Se podrá denegar la concesión de otra autorización de explotación a cualquier titular de una explotación de cantera
que no hubiera cumplido con las obligaciones de restauración de una cantera autorizada en virtud de lo dispuesto en los artículos L.512-1 y L.512-2.
Artículo L515-5 Las explotaciones de canteras existentes a fecha del Decreto de clasificación de las canteras en el catálogo
contemplado en el artículo L.511-2, deberán adaptarse a las obligaciones de garantías financieras previstas en el artículo L.516-1, en el plazo de cinco años a contar desde el 14 de junio de 1994.
Artículo L515-6 I. - Un decreto adoptado en Conseil d'Etat determinará las condiciones particulares de aplicación de lo dispuesto en
los artículos L.512-1 y L.512.2 a las explotaciones de canteras. II. - Por excepción a lo dispuesto en el artículo L.513-1, las canteras en situación regular en relación con lo
dispuesto en los artículos 106 (derogado), 109 y 109-1 del Código de Minería, podrán seguir siendo explotadas cumpliendo con las disposiciones que les eran aplicables antes de la inclusión de las canteras en el catálogo de instalaciones clasificadas.
A partir de la inclusión de las canteras en el catálogo de instalaciones clasificadas, las disposiciones citadas en el párrafo anterior estarán sujetas a las condiciones y sanciones dispuestas en el presente título y en los reglamentos dictados para su ejecución, y se regirán por lo dispuesto en los artículos L.512-3 y L.512-7.
Las solicitudes de autorización y de licencia o las declaraciones presentadas antes de la inclusión de las canteras en el catálogo de instalaciones clasificadas, serán tramitadas con arreglo a las disposiciones aplicables en virtud del Código de Minería. Las prescripciones impuestas al término de estos procedimientos se regirán por lo dispuesto en el presente título.
Artículo L525-3 (Disposición nº 2004-637 de 1 de julio de 2004 art. 34-4 Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2006) (Ley nº 2004-1343 de 9 de diciembre de 2004 art. 78 XXXII 4° Diario Oficial de 10 de diciembre de 2004 con entrada en vigor el 1 de julio de 2005)
El plan departamental de canteras definirá las condiciones generales de implantación geográfica de las canteras en el departamento. Tendrá en cuenta el interés económico nacional, los recursos y las necesidades de materiales en el departamento y los departamentos vecinos, la protección de los paisajes, de los espacios y medios naturales sensibles y la necesidad de una gestión equilibrada del espacio, favoreciendo a la vez un consumo equilibrado de materias primas. Establecerá los objetivos a alcanzar en materia de restauración y acondicionamiento de los espacios naturales.
El plan departamental de canteras será elaborado previa consulta del documento de gestión del espacio agrícola y forestal citado en el artículo L. 112-1 del Código Rural.
Será aprobado por el Prefecto, previo dictamen del Consejo General, y podrán acceder al mismo los ciudadanos en las condiciones establecidas por decreto.
Las autorizaciones de explotación de canteras, concedidas en aplicación del presente título, tendrán que ser compatibles con este plan.
Sección II Almacenamiento subterráneo de productos peligrosos Artículo L515-7
Artículo L515-7 (Ley nº 2004-105 de 3 de febrero de 2004 art. 20 Diario Oficial de 4 de febrero de 2004)
El almacenamiento subterráneo en capas geológicas profundas de productos peligrosos, cualquiera que fuera su naturaleza, estará sujeto a autorización administrativa. Esta autorización podrá ser concedida o ampliada solamente por un período limitado y, por consiguiente, podrá prever las condiciones de reversibilidad del almacenamiento. Los productos tendrán que ser retirados a la expiración del período de validez de la autorización.
A la finalización del período de autorización de funcionamiento que será como mínimo de veinticinco años, o en el supuesto de que la aportación de residuos hubiera cesado como mínimo un año antes, la autorización podrá ser renovada por un período ilimitado, basándose en una evaluación ecológica que incluya un estudio de impacto ambiental y la presentación de soluciones alternativas para la permanencia del almacenamiento así como de sus consecuencias. La renovación irá acompañada de una nueva valoración de las garantías financieras recogidas en los artículos L. 541-26 o L. 552-1.
Para los almacenamientos subterráneos de residuos finales, antes de la concesión de la autorización citada en el párrafo primero, la Agencia de Medio Ambiente y de Control de la Energía podrá concluir con el titular de la explotación
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CÓDIGO DE MEDIO AMBIENTE un contrato que determine las condiciones técnicas y financieras del inicio y continuación de la explotación, teniendo en cuenta la eventualidad de que su renovación pudiera ser denegada. Este contrato estará sujeto a la aprobación del representante del Estado.
Lo dispuesto en los dos párrafos anteriores no se aplicará al almacenamiento subterráneo de residuos radiactivos.
Sección III Instalaciones que admiten servidumbres de utilidad pública Artículos L515-8 a
L515-12
Artículo L515-8 (Ley nº 2003-699 de 30 de julio de 2003 art. 3 Diario Oficial de 31 de julio de 2003)
I. - Cuando una solicitud de autorización sea relativa a una instalación clasificada que se prevea abrir en un nuevo lugar y sea susceptible de crear, por peligro de explosión o emanación de productos nocivos, riesgos muy importantes para la salud o la seguridad de las poblaciones vecinas y para el medio ambiente, se podrán constituir servidumbres de utilidad pública que supongan la utilización del suelo y la ejecución de obras sujetas a la licencia de obra.
Asimismo, lo dispuesto anteriormente será aplicable en virtud de los riesgos suplementarios creados por una instalación nueva en emplazamiento ya existente o por la modificación de una instalación existente que requiriese la concesión de una nueva autorización.
II. - Estas servidumbres conllevarán, si fuere necesario: 1º La limitación o la prohibición de implantar construcciones u obras y de acondicionar terrenos de camping o de
estacionamiento de caravanas; 2° La supeditación de las autorizaciones de obra al cumplimiento de determinadas prescripciones técnicas que
tengan por objeto reducir el peligro de exposición a explosiones o conciernan al aislamiento de los edificios respecto a las emanaciones tóxicas;
3° La limitación del número de personas empleadas en las instalaciones industriales y comerciales que se pudieran crear posteriormente.
III. - Tendrán en cuenta la naturaleza e intensidad de los riesgos originados y podrán, dentro del mismo perímetro, aplicarse de manera progresiva en función de las zonas afectadas. No podrán imponer la demolición o el abandono de construcciones ya existentes, edificadas de conformidad con las disposiciones legislativas y reglamentarias en vigor antes de la constitución de dichas servidumbres.
IV. - Un decreto adoptado en Conseil d'Etat previo dictamen del Consejo Superior de Instalaciones Clasificadas, establecerá la lista con las categorías de las instalaciones en cuyos terrenos aledaños se puedan constituir dichas servidumbres y, eventualmente, sus valores límites de capacidad.
Artículo L515-9 La constitución de servidumbres de utilidad pública, dentro de un perímetro delimitado alrededor de la instalación,
será decidido o bien a petición del solicitante de la autorización o del Alcalde del municipio donde esté situada la instalación, o bien por iniciativa del Prefecto.
Un decreto adoptado en Conseil d'Etat determinará las condiciones de delimitación del perímetro, teniendo en consideración especialmente los dispositivos de seguridad de la instalación y las características del emplazamiento.
El proyecto de servidumbre y su perímetro serán sometidos a consulta pública, conforme a lo dispuesto en los artículos L.123-1 a L.123-16, y al dictamen favorable de los Consejos municipales de los municipios en cuyo territorio se sitúe dicho perímetro.
Las servidumbres y su perímetro serán determinados por la autoridad competente para expedir la autorización de la instalación clasificada.
Artículo L515-10 Las servidumbres se adjuntarán al plan de ocupación de los suelos del municipio, con arreglo a las condiciones
establecidas en el artículo L.126-1 del Código de Urbanismo.
Artículo L515-11 Cuando la constitución de las servidumbres contempladas en el artículo L.515-8 implique un perjuicio directo,
material y real, dará derecho a una indemnización a favor de los propietarios, de los titulares de derechos reales o de sus derechohabientes.
La solicitud de indemnización tendrá que ser dirigida al titular de la explotación de la instalación en el plazo de tres años a partir de la fecha de notificación de la decisión de constitución de la servidumbre. A falta de acuerdo amistoso, la indemnización será fijada por el juez de expropiación.
El perjuicio será valorado en la fecha correspondiente a la resolución dictada en primera instancia. No obstante, sólo se tendrá en cuenta el posible uso de los bienes inmuebles y derechos inmobiliarios durante el año anterior a la apertura de la consulta pública contemplada en el artículo L.515-9. La eventual calificación del terreno edificable será determinada con arreglo a lo dispuesto en el artículo L.13-15 del Código de la Expropiación por Causa de Utilidad Pública.
El Juez reducirá o denegará la indemnización si, en razón de la época en la que tuviera lugar la adquisición de derechos sobre un terreno o por cualquier otra circunstancia, esta adquisición se hubiera realizado con la finalidad de obtener una indemnización.
El pago de las indemnizaciones correrá por cuenta del titular de la explotación de la instalación.
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CÓDIGO DE MEDIO AMBIENTE Artículo L515-12 (Ley nº 2002-276 de 27 de febrero de 2002 art. 149 Diario Oficial de 28 de febrero de 2002)
A fin de proteger los intereses mencionados en el artículo L.511-1, las servidumbres contempladas en los artículos L.515-8 a L.515-11 podrán ser constituidas en terrenos contaminados por la explotación de una instalación, en los terrenos pertenecientes a centros de almacenamiento de residuos o en una franja de 200 metros alrededor de la zona de explotación, en los terrenos pertenecientes a lugares de antiguas canteras o alrededor de estos lugares, en superficies cuya integridad condicione el respeto a la seguridad y salubridad públicas. Estas servidumbres podrán conllevar además la limitación o la prohibición de realizar modificaciones del estado del suelo o del subsuelo y permitir la aplicación de las disposiciones relativas a la vigilancia del lugar.
Estas servidumbres podrán ser constituidas en cualquier momento cuando se trate de instalaciones de almacenamiento de residuos. Dejarán de tener efecto cuando los residuos sean retirados de la zona de almacenamiento.
Estas servidumbres darán derecho a indemnización en las condiciones previstas en el artículo L.515-11.
Sección IV Instalaciones cuyas actividades están sujetas a autorización Artículo L515-13
Artículo L515-13 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 17º Diario Oficial de 3 de julio de 2003)
I. - En determinadas categorías de instalaciones clasificadas, el empleo de sustancias, productos, organismos o procedimientos de fabricación podrá estar supeditado a una autorización a fin de cumplir con lo dispuesto en las directivas comunitarias relativas a la protección del medio ambiente. Un decreto adoptado en Conseil d'Etat establecerá las condiciones de aplicación del presente párrafo y, en particular, las condiciones de concesión de la autorización, así como también los plazos en los que la misma será concedida o a la expiración de los cuales se considerará que está concedida.
II. - Tal como establece el artículo 90 II de la Ley de finanzas rectificativa para 1992 (nº 92-1476 de 31 de diciembre de 1992), cualquier solicitud de la autorización mencionada en el punto I para la utilización confinada de organismos modificados genéticamente, irá acompañada de una tasa correspondiente a los gastos de tramitación, la cual será devengada a favor del presupuesto general del Estado. La misma será exigible en el momento de presentación del expediente de solicitud. Su importe será de 1.525 euros por expediente. Se reducirá a 305 euros cuando la solicitud de autorización corresponda a una utilización confinada diferente de la primera.
La recaudación y el procedimiento contencioso-administrativo a que diera lugar la tasa establecida en el párrafo anterior estarán bajo la responsabilidad de contables del Tesoro Público, con arreglo a los procedimientos establecidos en los artículos 81 a 95 del Decreto nº 62-1587 de 29 de diciembre de 1962 por el que se establece el reglamento general de la contabilidad pública, en su redacción vigente a fecha del 13 de julio de 1992.
Sección V Instalaciones de eliminación de residuos Artículo L515-14
Artículo L515-14 (Disposición nº 2005-1129 de 8 de septiembre de 2005 art. 2 II Diario Oficial de 9 de septiembre de 2005)
Las decisiones relativas a las instalaciones de eliminación de residuos tomadas en aplicación del presente título tendrán que incluir las medidas previstas en el artículo L. 516-1.
NOTA: Disposición 2005-1129 de 8 de septiembre de 2005: Lo dispuesto en el artículo 2 II de la Disposición 2005-1129 será aplicable en Mayotte.
Sección VI Instalaciones sujetas a un plan de prevención de riesgos tecnológicos Artículos L515-15 a
L515-26
Artículo L515-15 (introducido por la Ley n° 2003-699 de 30 de julio de 2003 art. 5 Diario Oficial de 31 de julio de 2003)
El Estado elaborará y pondrá en práctica planes de prevención de riesgos tecnológicos cuya finalidad sea reducir el impacto de accidentes susceptibles de producirse en las instalaciones que figuren en la lista mencionada en el punto IV del artículo L.515-8, y que pudieran producir efectos sobre la salubridad, la salud y la seguridad públicas, de manera directa o por medio de la contaminación del medio natural.
Estos planes delimitarán un perímetro de exposición a los riesgos, teniendo en cuenta el carácter y la intensidad de los riesgos tecnológicos descritos en los estudios de peligrosidad y las medidas de prevención aplicadas.
Artículo L515-16 (introducido por la Ley n° 2003-699 de 30 de julio de 2003 art. 5 Diario Oficial de 31 de julio de 2003)
Dentro del perímetro de exposición a los riesgos y en función del tipo de riesgos, de su gravedad, probabilidad y cinética, los planes de prevención de riesgos tecnológicos podrán:
I. - Delimitar las zonas en las que la realización de acondicionamientos u obras, así como también las construcciones nuevas y la ampliación de las construcciones ya existentes, estarán prohibidas o supeditadas al
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CÓDIGO DE MEDIO AMBIENTE cumplimiento de disposiciones relativas a la construcción, la utilización y la explotación.
En estas zonas, los municipios o las entidades públicas de cooperación intermunicipal competentes podrán ejercer el derecho de tanteo y retracto en las condiciones establecidas en el artículo L.211-1 del Código de Urbanismo.
II. - Delimitar, en el interior de las zonas definidas en el punto I, sectores donde, por existir riesgos importantes de accidente de cinética rápida que representen un grave peligro para las personas, los municipios o las entidades públicas de cooperación intermunicipal competentes podrán instaurar el derecho de abandono de los edificios o partes de edificios existentes en la fecha de aprobación del plan, el cual se ejercerá en las condiciones establecidas en los artículos L.230-1 y siguientes del Código de Urbanismo. No obstante, para la determinación del precio de compra, el valor del bien será establecido sin tener en cuenta la eventual depreciación suplementaria causada por la existencia de la servidumbre constituida en aplicación del punto I. El municipio o la entidad pública de cooperación intermunicipal podrá confiar a una entidad pública, mediante contrato, la adquisición de los bienes objeto del abandono.
III. - Delimitar, en el interior de las zonas contempladas en el punto I, sectores donde, por existir riesgos importantes de accidente de cinética rápida que representen un peligro muy grave para las personas, el Estado podrá declarar la expropiación por causa de utilidad pública de los edificios y derechos reales inmobiliarios, a través de los municipios o las entidades públicas de cooperación intermunicipal competentes y en su beneficio, con arreglo a las condiciones establecidas en el Código de la Expropiación por Causa de Utilidad Pública y siempre que los medios de salvaguarda y protección de las poblaciones resultaran imposibles o fueran más costosos que la expropiación.
El procedimiento contemplado en los artículos L.15-6 y L.15-8 del Código de la Expropiación por Causa de Utilidad Pública será de aplicación cuando la gravedad de los riesgos potenciales haga necesaria la toma de posesión inmediata.
Para determinar el precio de adquisición o el importe de las indemnizaciones, no se tendrá en cuenta la eventual depreciación suplementaria aportada al bien por la existencia de la servidumbre constituida en aplicación del punto I.
IV. - Prescribir las medidas de protección de las poblaciones ante los posibles riesgos, relativas al acondicionamiento, utilización o explotación de las construcciones, obras, instalaciones y vías de comunicación existentes en la fecha de aprobación del plan, y las cuales deberán ser tomadas por los propietarios, titulares de explotaciones y usuarios en los plazos determinados en el plan. Estas medidas podrán incluir, en especial, disposiciones relativas a los movimientos y al estacionamiento de los vehículos de transporte de materias peligrosas.
Cuando se ordene la realización de obras en aplicación del párrafo anterior, éstas sólo podrán tratar de acondicionamientos cuyo coste no exceda de los límites fijados por el decreto adoptado en Conseil d'Etat contemplado en el artículo L.515-25.
V. - Dictar recomendaciones a aplicar por los propietarios, titulares de explotaciones y usuarios, tendientes a reforzar las medidas de protección de las poblaciones ante los riesgos y relativas al acondicionamiento, utilización o explotación de las construcciones, obras, vías de comunicación y terrenos de camping o estacionamiento de caravanas, para que sean puestas en práctica por los propietarios, titulares de explotaciones y usuarios.
Artículo L515-17 (introducido por la Ley n° 2003-699 de 30 de julio de 2003 art. 5 Diario Oficial de 31 de julio de 2003)
Las medidas contempladas en los puntos II y III del artículo L.515-16 sólo podrán ser tomadas en función de los riesgos creados por instalaciones existentes en la fecha de publicación de la Ley nº 2003-699 de 30 de julio de 2003, relativa a la prevención de riesgos tecnológicos y naturales y a la reparación de los daños.
Artículo L515-18 (introducido por la Ley n° 2003-699 de 30 de julio de 2003 art. 5 Diario Oficial de 31 de julio de 2003)
Las medidas previstas en los planes de prevención de riesgos tecnológicos, en particular en los puntos II y III del artículo L.515-16, serán aplicadas progresivamente en función, principalmente, de la probabilidad, la gravedad y la cinética de los accidentes potenciales, así como de la relación entre el coste de las medidas previstas y el beneficio esperado en materia de seguridad.
Artículo L515-19 (introducido por la Ley n° 2003-699 de 30 de julio de 2003 art. 5 Diario Oficial de 31 de julio de 2003)
I. - El Estado, los titulares de la explotación de las instalaciones que hubieran originado el riesgo y las entidades territoriales competentes o sus agrupaciones competentes, en la medida en que perciban la tasa profesional en el perímetro cubierto por el plan, se encargarán de financiar las medidas tomadas en aplicación de los puntos II y III del artículo L.515-16. Concluirán, a estos efectos, un contrato que fije sus respectivas contribuciones. Antes de concluir este contrato, el derecho de abandono mencionado en el punto II del mismo artículo no podrá ser ejercitado y la expropiación mencionada en el párrafo primero del punto III del mismo artículo sólo podrá ser declarada por causa de utilidad pública si la gravedad de los riesgos potenciales hiciera necesaria la toma de posesión inmediata, con arreglo al procedimiento mencionado en el párrafo segundo de este punto III.
Sin perjuicio de las obligaciones que el Prefecto imponga al titular de la explotación en aplicación de los artículos L.512-1 a L.512-5 y L.512-7, estos contratos podrán establecer la participación del Estado, de las entidades territoriales o de sus agrupaciones en la financiación de las medidas suplementarias de prevención de riesgos que debiera adoptar el titular de la explotación para reducir los sectores mencionados en los puntos II y III del artículo L.515-16, cuando dicha participación fuera inferior a los costes que tuvieran que soportar como consecuencia de la aplicación de las medidas previstas en estos puntos II y III.
II. - Un contrato entre las entidades territoriales competentes o sus agrupaciones y los titulares de la explotación de las instalaciones que hubieran originado el riesgo, concluido en el plazo de un año a partir de la aprobación del plan de
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CÓDIGO DE MEDIO AMBIENTE prevención de riesgos tecnológicos, especificará las condiciones en las que se realizarán el acondicionamiento y la gestión de los terrenos situados en las zonas mencionadas en el punto I y en los sectores mencionados en los puntos II y III del artículo L.515-16.
III. - Un contrato concluido entre las entidades territoriales competentes o sus agrupaciones, los titulares de la explotación de las instalaciones que hubieran originado el riesgo y los organismos de gestión de viviendas de alquiler moderado mencionados en el artículo L.411-12 del Código de la Construcción y de la Vivienda, arrendadores de inmuebles situados en los sectores mencionados en el punto III del artículo L.515-6 del presente Código, definirá, en su caso, un programa de realojamiento de los ocupantes de los inmuebles situados en estos sectores. En este contrato podrán participar igualmente los demás arrendadores de inmuebles situados en esos mismos sectores.
Artículo L515-20 (introducido por la Ley n° 2003-699 de 30 de julio de 2003 art. 5 Diario Oficial de 31 de julio de 2003)
Los terrenos situados dentro del perímetro del plan de prevención de riesgos tecnológicos que hubieran sido adquiridos por los municipios o sus agrupaciones y las entidades públicas mencionadas en la última frase del punto II del artículo L.515-16, en concepto del derecho de tanteo y retracto, abandono o expropiación, podrán ser cedidos a precio de coste a los titulares de la explotación de las instalaciones que hubieran originado el riesgo.
El uso de estos terrenos no tendrá que agravar la exposición de las personas a los riesgos.
Artículo L515-21 (introducido por la Ley n° 2003-699 de 30 de julio de 2003 art. 5 Diario Oficial de 31 de julio de 2003)
El plan de prevención de riesgos tecnológicos mencionará las servidumbres de utilidad pública constituidas en aplicación del artículo L.515-8 alrededor de las instalaciones situadas dentro del perímetro del plan.
Artículo L515-22 (introducido por la Ley n° 2003-699 de 30 de julio de 2003 art. 5 Diario Oficial de 31 de julio de 2003)
El Prefecto definirá las condiciones de la concertación relativa a la elaboración del proyecto de plan de prevención de riesgos tecnológicos, con arreglo a las condiciones establecidas en el artículo L.300-2 del Código de Urbanismo.
En la elaboración del plan de prevención de riesgos tecnológicos participarán, en especial, los titulares de la explotación de las instalaciones que hubieran originado el riesgo, los municipios en cuyo territorio tuviera que aplicarse el plan, las entidades públicas de cooperación intermunicipal competentes en materia de urbanismo y cuyo perímetro de intervención esté afectado total o parcialmente por el plan, así como también el Comité local de información y concertación creado en aplicación del artículo L.125-2.
El Prefecto recabará la opinión de los mismos sobre el proyecto de plan, antes de someterlo a consulta pública, en las condiciones mencionadas en los artículos L.123-1 y siguientes.
El plan de prevención de riesgos tecnológicos será aprobado por orden prefectoral. Será revisado con arreglo a las mismas disposiciones.
Artículo L515-23 (introducido por la Ley n° 2003-699 de 30 de julio de 2003 art. 5 Diario Oficial de 31 de julio de 2003)
El plan de prevención de riesgos tecnológicos que hubiera sido aprobado tendrá el valor de servidumbre de utilidad pública. Se pondrá en conocimiento de los Alcaldes de los municipios situados dentro del perímetro del plan, según lo dispuesto en el artículo L.121-2 del Código de Urbanismo. Se adjuntará a los planos locales de urbanismo, de conformidad con lo dispuesto en el artículo L.126-1 del mismo Código.
Artículo L515-24 (introducido por la Ley n° 2003-699 de 30 de julio de 2003 art. 5 Diario Oficial de 31 de julio de 2003)
I. - Las infracciones a las disposiciones ordenadas en aplicación del punto I del artículo L.515-16 del presente Código serán castigadas con las penas contempladas en el artículo L.480-4 del Código de Urbanismo.
II. - Lo dispuesto en los artículos L.460-1, L.480-1, L.480-2, L.480-3 y L.480-5 a L.480-12 del Código de Urbanismo será de aplicación igualmente a las infracciones citadas en el punto I, siempre que se cumplan las siguientes condiciones:
1° Las infracciones serán comprobadas, además, por los funcionarios y agentes jurados nombrados a estos efectos por la autoridad administrativa competente en materia de instalaciones clasificadas para la protección del medio ambiente;
2° Los representantes de la autoridad administrativa competente en materia de instalaciones clasificadas para la protección del medio ambiente tendrán el derecho de inspección previsto en el artículo L.460-1 del mismo Código.
Artículo L515-25 (introducido por la Ley n° 2003-699 de 30 de julio de 2003 art. 5 Diario Oficial de 31 de julio de 2003)
Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación de los artículos L.515-5 a L.515-24 y los plazos de elaboración y de aplicación de los planes de prevención de riesgos tecnológicos. En el caso de instalaciones clasificadas que dependan del Ministerio de Defensa y de depósitos de municiones antiguas, este decreto podrá prever, en tanto sea necesario, las condiciones de consulta e información al público adaptadas a las exigencias de la defensa nacional o específicas para los depósitos de municiones antiguas.
Artículo L515-26 (introducido por la Ley n° 2003-699 de 30 de julio de 2003 art. 21 Diario Oficial de 31 de julio de 2003)
Cualquier titular de la explotación de un establecimiento que incluya al menos una instalación de las que figuren en
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CÓDIGO DE MEDIO AMBIENTE la lista contemplada en el punto IV del artículo L.515-8 del presente Código o que se cita en el artículo 3-1 del Código de Minería, estará obligado a pedir que se proceda a una evaluación de la probabilidad de ocurrencia y coste de los daños materiales potencialmente causados a terceros en caso de producirse un accidente en esta instalación, y deberá remitir el informe de evaluación, elaborado en aplicación del artículo L.125-2 del presente Código, al Prefecto y al Presidente del Comité local de información y concertación sobre los riesgos.
Esta evaluación será realizada para cada uno de los accidentes mayores identificados en el estudio de peligrosidad del establecimiento, de conformidad con lo dispuesto en la reglamentación de las instalaciones clasificadas. Será revisada cada vez que se proceda a una revisión del estudio de peligrosidad antes citado.
En caso de litigio relacionado con un accidente acaecido en la instalación, esta evaluación no será oponible al titular de la explotación por parte de terceros.
Un decreto adoptado en Conseil d'Etat precisará las condiciones de aplicación del presente artículo.
Capítulo VI Disposiciones financieras Artículos L516-1 a
L516-2
Artículo L516-1 El inicio de actividad de las instalaciones definidas por decreto adoptado en Conseil d'Etat que presenten riesgos
importantes de contaminación o de accidente, de canteras y de instalaciones de almacenamiento de residuos, estará supeditado a la constitución de garantías financieras, tanto tras la autorización inicial, como tras una autorización de cambio de titular de la explotación.
Estas garantías estarán destinadas a asegurar, en función de la naturaleza de los peligros o inconvenientes de cada categoría de instalaciones, la vigilancia del lugar y la seguridad de la instalación, las eventuales intervenciones en caso de accidente antes y después del cierre y la restauración del lugar después del cierre. No cubrirán las indemnizaciones que el titular de la explotación debiera pagar a terceros en concepto de perjuicio causado por la contaminación o de accidente originado por la instalación.
Un decreto adoptado en Conseil d'Etat determinará el carácter de las garantías y las normas para la determinación de su importe.
Sin perjuicio del procedimiento de multa administrativa prevista en el artículo L.541-26, el incumplimiento de las obligaciones de constituir las garantías financieras dará lugar a la aplicación del procedimiento de consignación contemplado en el artículo L.514-1, además de las diligencias penales que se pudieran practicar.
Artículo L516-2 (introducido por la Ley n° 2003-699 de 30 de julio de 2003 art. 31 Diario Oficial de 31 de julio de 2003)
Con respecto a las instalaciones pertenecientes a las categorías citadas en el artículo L.516-1, el titular de la explotación tendrá la obligación de informar al Prefecto en caso de producirse una modificación sustancial de las capacidades técnicas y financieras contempladas en el artículo L.512-1.
El Prefecto podrá imponer la constitución o la revisión de las garantías financieras contempladas en el artículo L.516-1, si comprobara que las capacidades técnicas y financieras no son susceptibles de permitir el cumplimiento de las obligaciones del artículo L.512-1.
Un decreto adoptado en Conseil d'Etat definirá las condiciones de aplicación del artículo L.516-1 y del presente artículo, así como las condiciones de su aplicación a las instalaciones regularmente puestas en funcionamiento o autorizadas antes de la publicación de la Ley nº 2003-699 de 30 de julio de 2003, relativa a la prevención de riesgos tecnológicos y naturales y a la reparación de los daños.
Capítulo VII Disposiciones diversas Artículos L517-1 a
L517-2
Artículo L517-1 En lo que respecta a las instalaciones pertenecientes a los servicios y organismos que dependan del Estado y que
estén incluidas en una lista establecida por decreto, las competencias atribuidas al Prefecto por el presente título serán ejercidas por el Ministro competente en materia de instalaciones clasificadas, o por el Ministro de Defensa para las instalaciones que dependan de su departamento.
Lo dispuesto en los artículos L.515-8 a L.515-11 no será de aplicación a las instalaciones que dependan del Ministro de Defensa.
Artículo L517-2 Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente título.
Título II Productos químicos y biocidas Artículos L521-3 a
L522-1
Capítulo I Control de los productos químicos Artículos L521-3 a
L521-2
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CÓDIGO DE MEDIO AMBIENTE Artículo L521-1 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
I. - Las disposiciones del presente capítulo tienen por objeto proteger al ser humano y al medio ambiente contra los riesgos que puedan derivarse de las sustancias y preparados químicos.
II. - Se aplicarán a las sustancias químicas, es decir a los elementos químicos y a sus componentes en estado natural o tal como son obtenidos por medio de cualquier procedimiento de producción, incluyendo cualquier aditivo que fuera necesario para conservar la estabilidad del producto y cualquier impureza derivada del procedimiento, a excepción de los disolventes que pudieran ser separados sin afectar la estabilidad de la sustancia ni modificar su composición, tanto en su estado natural como incorporadas en preparados.
III. - Lo dispuesto en el punto II del artículo L.521-6 se aplicará igualmente: 1° A los productos manufacturados o equipos que contengan sustancias o preparados peligrosos, definidos por
reglamentos comunitarios o por decreto adoptado en Conseil d'Etat; 2° A los transportes terrestres, marítimos y aéreos de sustancias y preparados peligrosos. IV. - A efectos del presente capítulo, se entenderá por: 1° "Preparados": las mezclas o soluciones compuestas de dos sustancias o más; 2° "Comercialización": la puesta a disposición de terceros, a título oneroso o gratuito.
Artículo L521-2 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
El presente capítulo no se aplicará: 1° A las sustancias y preparados siguientes en fase de acabado, destinados al usuario final, para ser utilizados
como: - medicamentos para uso humano o veterinario, mencionados en el artículo L.5111-1 del Código de Salud Pública; - productos cosméticos en el sentido del artículo L.5131-1 del Código de Salud Pública; - productos alimentarios; - alimentos para animales; 2° A otras sustancias y preparados sujetos a requisitos al menos equivalentes a los que se contemplan en el
presente capítulo; 3° A las sustancias radiactivas que contengan uno o varios radionucleidos y que se rijan por otra reglamentación.
Sección I Declaración de sustancias nuevas Artículos L521-3 a
L521-5
Artículo L521-3 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
I. - Con carácter previo a la comercialización de una sustancia que no figure en el Inventario Europeo de Sustancias Químicas Comerciales Existentes (EINECS) a fecha de 18 de septiembre de 1981, publicado en el Diario Oficial de la Unión Europea nº C 146 de 15 de junio de 1990, los productores e importadores de esa sustancia tendrán que dirigir una declaración a la autoridad administrativa. Si la sustancia presentara peligro para el ser humano o el medio ambiente, tendrán que indicar las precauciones que se debieran tomar para evitarlos.
Las declaraciones contempladas en el párrafo primero irán acompañadas, con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat, de un expediente técnico que proporcione los elementos de apreciación de los peligros y riesgos previsibles, inmediatos o diferidos, que pueda presentar la sustancia para el ser humano y para el medio ambiente.
II. - No obstante, lo dispuesto anteriormente no se aplicará: 1° Al importador de una sustancia procedente de un Estado miembro de la Comunidad Europea, si la sustancia
hubiera sido objeto en dicho Estado de una comercialización de conformidad con las normas nacionales adoptadas en aplicación de las directivas del Consejo de la Comunidad Europea;
2° A las categorías de sustancias sujetas a otros procedimientos que no sean los contemplados en el presente capítulo y tengan en cuenta los riesgos a los que el ser humano y el medio ambiente estuvieran expuestos. Estas categorías serán definidas por decreto adoptado en Conseil d'Etat.
III. - Las sustancias destinadas a actividades de investigación y desarrollo y las sustancias que presentan un riesgo muy bajo estarán sujetas a una declaración simplificada o estarán exentas del procedimiento de declaración. Un decreto adoptado en Conseil d'Etat precisará las condiciones de aplicación del presente párrafo.
IV. - La importación de una sustancia procedente de un Estado que no sea miembro de la Comunidad Europea será considerada como una comercialización, excepto en el caso de las sustancias en tránsito.
V. - Lo dispuesto en el presente artículo se aplicará igualmente a las sustancias químicas incorporadas en preparados.
Artículo L521-4 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
No se podrá comercializar una sustancia sujeta a declaración en virtud de lo dispuesto en el artículo L.521-3, hasta que transcurra un determinado plazo cuyo cómputo comenzará en la fecha de admisión por la autoridad administrativa de la declaración presentada junto con el expediente. Este plazo, determinado por decreto adoptado en Conseil d'Etat, dependerá sobre todo de la cantidad de sustancia declarada para la comercialización.
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CÓDIGO DE MEDIO AMBIENTE Artículo L521-5 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
I. - El productor o importador de una de las sustancias sujetas a declaración en virtud de lo dispuesto en el artículo L.521-3, se mantendrá permanentemente informado de la evolución de los conocimientos sobre el impacto que para el ser humano y el medio ambiente pudiera producir la liberación de estas sustancias. El mismo mantendrá informada a la autoridad administrativa:
1° De las modificaciones que afecten a la información proporcionada en el expediente de declaración, como se define en el punto I del artículo L.521-3;
2° De los datos nuevos acerca de los efectos de dicha sustancia sobre el ser humano y el medio ambiente. II. - La autoridad administrativa podrá exigir a los productores e importadores que entreguen los expedientes
técnicos que fueran necesarios para un nuevo análisis de las sustancias que pudieran ser objeto de las medidas contempladas en el artículo L.521-6.
Sección II Disposiciones comunes a las sustancias y a los preparados Artículos L521-6 a
L521-11
Artículo L521-6 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
I. - Los productores, importadores o usuarios industriales pondrán en práctica las medidas necesarias para prevenir los riesgos relacionados con la liberación al ambiente de sustancias químicas y preparados. Mantendrán a disposición de la autoridad administrativa:
1° La composición de las sustancias y preparados que hubieran sido objeto de comercialización; 2° Muestras de las sustancias y preparados que hubieran sido objeto de comercialización; 3° Datos cifrados precisos sobre la cantidad de sustancias y preparados que hubiera comercializado o difundido,
desglosados según los diferentes usos conocidos de los que hubiera tenido conocimiento o que razonablemente pudiera conocer;
4° Toda la información complementaria acerca de los efectos producidos sobre el ser humano y el medio ambiente. II. - Cuando se trate de sustancias y preparados que presentaran peligro o riesgos inaceptables para el ser humano
o el medio ambiente, así como de productos manufacturados o equipos que los contengan en las condiciones establecidas en el artículo L.521-1, se podrán adoptar las medidas siguientes:
1° La prohibición total, provisional o parcial de producción, importación, exportación, transporte, comercialización o de otros usos;
2° Las prescripciones necesarias para restringir o regular la producción, importación, exportación, comercialización, empleo para determinados usos, recuperación, regeneración, reciclado, eliminación, almacenamiento, transporte, composición, etiquetado, embalaje o envasado, denominación comercial y publicidad, así como cualquier otro requisito que fuera necesario para la preservación de la salud pública y del medio ambiente.
III. - Los productores, importadores y exportadores de sustancias y preparados químicos tendrán la obligación, en aplicación de las disposiciones comunitarias, de proporcionar periódicamente a la autoridad administrativa los datos cifrados específicos sobre las cantidades de sustancias en estado natural o incorporadas en preparados que hubieran producido, importado, exportado, almacenado, recuperado, regenerado o destruido.
IV. - Un decreto adoptado en Conseil d'Etat determinará las condiciones en las que se tomarán las medidas contempladas en el presente artículo.
Artículo L521-7 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
I. - La autoridad administrativa podrá comunicar a terceros aquella información para la cual no se pudiera invocar el secreto industrial.
II. - En lo que respecta a las sustancias declaradas en aplicación del artículo L.521-3, no podrán acogerse al secreto industrial y comercial las siguientes informaciones:
1° El nombre comercial de la sustancia; 2° El nombre del productor y del declarante; 3° Las propiedades fisicoquímicas de la sustancia; 4° Las posibilidades de hacer inofensiva la sustancia; 5° El resumen de los resultados de los ensayos toxicológicos y ecotoxicológicos; 6° El grado de pureza de la sustancia y la identificación de las impurezas o de los aditivos clasificados como
peligrosos según lo dispuesto en el artículo L.521-9, si dichos elementos fueran imprescindibles para la clasificación y el etiquetado de la sustancia;
7° Los métodos y las precauciones que se recomiendan respecto a la manipulación, el almacenamiento, el transporte, la prevención de los incendios y de cualquier otro peligro que pudiera presentar la sustancia, así como las medidas de urgencia que se deben adoptar en caso de dispersión accidental y siniestros con daños a personas;
8° La información contenida en la ficha de datos de seguridad; 9° En el caso de sustancias peligrosas clasificadas y etiquetadas según lo dispuesto en el artículo L.521-9, los
métodos de análisis que permitan detectarlas en el ambiente y determinar la exposición directa del ser humano. III. - La persona que hubiera proporcionado a la autoridad administrativa información para la que reivindica el
secreto industrial y comercial, podrá indicar la información que considere comercialmente sensible y cuya difusión
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CÓDIGO DE MEDIO AMBIENTE pudiera causarle un perjuicio, y para la que solicita el secreto frente a cualquier persona que no sea la autoridad administrativa. En este caso, dicha persona deberá justificar su petición a la autoridad administrativa, quien apreciará la procedencia de la solicitud.
La persona que proporcionara información cuyo secreto industrial y comercial hubiera sido reconocido con carácter previo por la autoridad administrativa, tendrá la obligación de ponerlo en conocimiento de ésta.
IV. - La autoridad administrativa tomará todas medidas que fueren necesarias para que las informaciones que ella, o la autoridad competente de un Estado miembro de la Comunidad Europea, hubiera reconocido como protegidas por el secreto industrial y comercial, sólo sean accesibles a las personas designadas por ella. Estas personas estarán sujetas al secreto profesional con arreglo a las condiciones previstas en los artículos 126-13 y 226-14 del Código Penal, salvo ante las autoridades judiciales que actuaran en el marco de un procedimiento penal.
Un decreto establecerá las condiciones para la protección del secreto de la fórmula completa de los preparados.
Artículo L521-8 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
Las sustancias producidas o comercializadas que figuren en el Inventario mencionado en el artículo L.521-3, serán analizadas o reanalizadas a instancia de la autoridad administrativa o en aplicación de decisiones comunitarias relativas a dicho Inventario.
Los productores o importadores entregarán, a petición de la autoridad administrativa, los expedientes técnicos que fueran necesarios para el análisis o el reanálisis de dichas sustancias, las cuales podrán ser objeto de las medidas contempladas en el artículo L.521-6.
Los vendedores y usuarios industriales mantendrán a disposición de la autoridad administrativa la información relativa a las utilizaciones que fueren necesarias para el análisis o el reanálisis de estas sustancias.
Los productores e importadores de estas sustancias o de preparados que las contienen tendrán que comunicar a la autoridad administrativa los hechos nuevos que se produzcan como consecuencia del perfeccionamiento de los conocimientos científicos y técnicos o de la observación de los efectos de estas sustancias, y que desvelen nuevos peligros o riesgos para el ser humano o para el medio ambiente.
Artículo L521-9 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
Las normas de clasificación, embalaje y etiquetado de las sustancias y preparados, así como las normas de elaboración de las fichas de datos de seguridad, serán definidas con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L521-10 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
La autoridad administrativa podrá pedir a los productores o importadores, y por cuenta de éstos, todos los datos complementarios o ensayos de comprobación que fueran necesarios para la aplicación de lo dispuesto en los artículos L.521-3, L.521-4, L.521-5 y L.521-8.
Artículo L521-11 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
Los gastos ocasionados por la conservación, el análisis, la explotación y el peritaje de las informaciones proporcionadas en los expedientes técnicos citados en los artículos L.521-3, L.521-5 y L.521-8 así como en el artículo L.1342-1 del Código de Salud Pública, podrán ser cargados a los productores y los importadores.
Sección III Control y comprobación de las infracciones Artículos L521-12 a
L521-16
Artículo L521-12 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
Además de los funcionarios y agentes de la policía judicial que actúan en el marco de las disposiciones del Código de Proceso Penal, estarán habilitados para efectuar los controles necesarios para comprobar el cumplimiento de las obligaciones contempladas en el presente capítulo y, en el ejercicio de sus funciones, para investigar y comprobar las infracciones a lo dispuesto en el presente capítulo y en los reglamentos dictados para su aplicación:
1° Los agentes jurados y nombrados de conformidad con la condiciones determinadas por decreto adoptado en Conseil d'Etat y pertenecientes a los servicios del Estado que estén encargados del medio ambiente, la agricultura y los transportes;
2° Los inspectores de las instalaciones clasificadas; 3° Los agentes de la Dirección General de la competencia, el consumo y la represión del fraude; 4° Los inspectores de trabajo y controladores laborales; 5° Los agentes de aduanas; 6° Los agentes mencionados en el artículo L.1421-1 del Código de Salud Pública; 7° Los inspectores de la Agencia Francesa de Seguridad Sanitaria de Productos para la Salud mencionados en el
artículo L.5313-1 del Código de Salud Pública; 8° Los veterinarios inspectores; 9° Los ingenieros y técnicos del servicio de protección de las especies vegetales;
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CÓDIGO DE MEDIO AMBIENTE 10° Los agentes habilitados para realizar controles técnicos a bordo de las aeronaves; 11° Los administradores y los inspectores de asuntos marítimos, los funcionarios de la organización técnica y
administrativa de asuntos marítimos, los controladores de asuntos marítimos y los agentes de vigilancia marítima, los comandantes, los segundos comandantes y los segundos oficiales de buques del Estado, así como también los comandantes de a bordo de las aeronaves del Estado destinados a la vigilancia de las aguas marítimas.
Artículo L521-13 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
Los agentes mencionados en el artículo L.521-12 tendrán acceso a los establecimientos y a los locales profesionales en los que se ejerzan actividades de producción, fabricación, transformación, utilización, embalaje o envasado, almacenamiento, depósito, transporte o comercialización de las sustancias y preparados, o de los productos manufacturados y equipos que los contengan, citados en el artículo L.521-1, con exclusión de los domicilios y partes de los locales que se utilicen como domicilio.
Podrán acceder a dichos lugares entre las 8 y las 20 horas, y fuera de ese horario en cualquier momento si el lugar estuviera abierto al público, o se estuviera llevando a cabo una de las actividades contempladas más arriba.
Asimismo, tendrán acceso a los vehículos, buques y aeronaves profesionales que se utilicen para el transporte de las sustancias o preparados.
Estos agentes podrán solicitar que se les haga entrega de cualquier pieza o documento útil, llevarse una copia de los mismos y recoger, previa petición o in situ, la información y los justificantes necesarios para el cumplimiento de su misión.
Artículo L521-14 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
I. - Para la aplicación de las medidas contempladas en el presente capítulo, los agentes citados en el artículo L.521-12 podrán tomar muestras con el objeto de realizar análisis o ensayos.
Las tomas de muestras se llevarán a cabo en presencia del director del establecimiento o de su representante. Un decreto adoptado en Conseil d'Etat determinará los requisitos que se debieran cumplir para llevar a cabo las tomas de muestras, los análisis y los ensayos.
II. - Para la aplicación de las medidas contempladas en el presente capítulo, los agentes citados en el artículo L.521-12 podrán proceder a la consignación, a fin de realizar controles, de las sustancias y preparados, o de los productos manufacturados y equipos que los contengan que presuntamente estén prohibidos o no estén en conformidad con las disposiciones del presente capítulo y con las adoptadas para su aplicación.
La medida de consignación no podrá exceder de quince días. Este plazo podrá ser prorrogado mediante resolución motivada o bien del Presidente del Tribunal de Grande Instance de la circunscripción en cuyo lugar se encuentren las sustancias, los preparados, los productos manufacturados o los equipos, o bien de un Magistrado delegado a estos efectos.
El Magistrado competente conocerá sin requisitos de forma de los asuntos que le sometan los agentes mencionados en el artículo L.521-12. Resolverá mediante resolución que podrá ser ejecutada provisionalmente dentro de las veinticuatro horas siguientes a su adopción a la vista de todos los elementos de información que sirvan para justificar esta medida.
La resolución ordenando la prórroga de la medida de consignación será notificada por cualquier medio al poseedor de las sustancias, preparados, productos manufacturados o equipos consignados.
Las sustancias, preparados, productos manufacturados y equipos objeto de la consignación quedarán a cargo de su poseedor.
El Presidente del Tribunal de Grande Instance podrá ordenar el levantamiento de la medida de consignación en cualquier momento. La consignación será levantada de pleno derecho por el agente habilitado para ello si se estableciera que las sustancias y preparados, o los productos manufacturados y equipos objeto de la consignación se adecuan a las normas a las que estuvieran sujetos.
III. - En caso de condena, los gastos ociasionados por los análisis, ensayos o consignaciones recogidos en el presente artículo, correrán a cargo del poseedor de las sustancias y preparados, o de los productos manufacturados y equipos que los contuvieran.
Artículo L521-15 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
Las sustancias y preparados, o los productos manufacturados y equipos que los contuvieran cuya fabricación, importación, comercialización, exportación, empleo o transporte sea susceptible de constituir una infracción penal a lo dispuesto en el presente capítulo, podrán ser incautados por resolución del Presidente del Tribunal de Grande Instance, o del Magistrado delegado por este último que tenga conocimiento con arreglo a las formas previstas en el artículo L.521-14. Quedarán bajo la custodia de su poseedor, salvo disposición en contrario establecida en la resolución.
Artículo L521-16 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 Diario Oficial de 14 de abril de 2001)
Las infracciones a las disposiciones del presente capítulo y a los reglamentos dictados para su aplicación, serán comprobadas por atestados y los hechos recogidos en los mismos se presumirán ciertos, salvo prueba en contrario. Dichos atestados deberán ser remitidos al Fiscal de la República dentro de los cinco días siguientes a su incoación, bajo pena de nulidad. Se remitirá una copia al interesado dentro del mismo plazo.
El Fiscal de la República será previamente informado de las operaciones previstas para la investigación de las
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CÓDIGO DE MEDIO AMBIENTE infracciones. Podrá oponerse a estas operaciones.
Sección IV Sanciones administrativas Artículos L521-17 a
L521-20
Artículo L521-17 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 IV Diario Oficial de 14 de abril de 2001) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 3 Diario Oficial de 27 de octubre de 2005)
Los agentes que procedan a un control y comprueben el incumplimiento de las obligaciones recogidas en el presente capítulo o las contempladas en los reglamentos (CEE) n° 304/2003, (CEE) n° 793/93 y (CE) n° 2037/2000, exceptuando las medidas de prohibición o las disposiciones contempladas en el apartado 2º del punto I del artículo L. 521-21, redactarán un informe que remitirán a la autoridad administrativa.
Transcurridos seis meses como máximo desde la comprobación de un incumplimiento, la autoridad administrativa, tras haber dado traslado del expediente a la persona interesada para presente sus alegaciones, podrá dirigir un requerimiento al productor o importador de sustancias o preparados instándole a cumplir, en un plazo dado, las obligaciones impuestas por la presente Ley.
NOTA: Al final del último párrafo, léase "presente capítulo" en lugar de "presente ley".
Artículo L521-18 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 1 IV Diario Oficial de 14 de abril de 2001)
En caso de incumplimiento de lo dispuesto en el artículo L.521-17, la autoridad administrativa ordenará el pago de una multa cuyo importe no podrá exceder de 1.500 Euros y de un recargo de 150 Euros por día.
Artículo L521-19 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 1 IV Diario Oficial de 14 de abril de 2001)
Las multas y recargos pecuniarios mencionados en el artículo L.521-18 no podrán imponerse por hechos que se remonten a más de tres años atrás si en dicho plazo no se hubiera realizado ninguna actuación para su investigación, comprobación o sanción.
Las multas y recargos pecuniarios mencionados en el presente artículo serán abonados al Tesoro. Esta suma se recaudará en las mismas condiciones que las establecidas en materia de créditos que no sean relativos al impuesto y al patrimonio.
Un decreto adoptado en Conseil d'Etat precisará el procedimiento destinado a garantizar los derechos de la defensa durante el procedimiento sancionador, así como los procedimientos de liquidación del recargo pecuniario contemplado en el artículo L.521-18.
Artículo L521-20 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 1 IV Diario Oficial de 14 de abril de 2001)
Las decisiones de la autoridad administrativa podrán ser objeto de recurso de plena jurisdicción.
Sección V Sanciones penales Artículos L521-21 a
L521-24
Artículo L521-21 (Disposición nº 2001-321 de 11 de abril de 2001 art. 1 IV Diario Oficial de 14 de abril de 2001) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 3 Diario Oficial de 27 de octubre de 2005)
I. - Será castigado con la pena de dos años de prisión y una multa de 75.000 euros el que: 1° Proporcionare a sabiendas información inexacta susceptible de implicar para la sustancia considerada y los
preparados que la contengan, o para los productos manufacturados y los equipos que los contengan, prescripciones menos restrictivas que aquéllas a las que hubieran tenido que estar sujetos en condiciones normales; u ocultare información conocida;
2° No cumpliere las medidas de prohibición o las disposiciones ordenadas en aplicación del punto II del artículo L. 521-6 y por los reglamentos (CEE) n° 304/2003, (CEE) n° 793/93 y (CE) n° 2037/2000 ;
3° No hubiere cumplido en el plazo otorgado las obligaciones impuestas por el requerimiento contemplado en el artículo L. 521-17.
II. - Las personas físicas podrán ser sancionadas asimismo con las siguientes penas accesorias: 1° La confiscación, con arreglo a las condiciones previstas en el apartado 10° artículo 131-6 del Código Penal; 2º La prohibición, contemplada en el apartado 11º del artículo 131-6 del Código Penal, de ejercer la actividad en
cuyo ejercicio o con ocasión de cuyo ejercicio se hubiera cometido la infracción; 3° El cierre temporal o definitivo de las instalaciones de producción donde se hubiera cometido la infracción; 4º La publicación o difusión de la resolución con arreglo a las condiciones establecidas en el artículo 131-35 del
Código Penal. III. - En caso de confiscación, el tribunal podrá ordenar que la destrucción de las sustancias o preparados sea por
cuenta de la persona condenada. IV. - Las personas jurídicas podrán ser declaradas penalmente responsables en las condiciones previstas en el
artículo 121-2 del Código Penal de las infracciones definidas en los párrafos anteriores.
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CÓDIGO DE MEDIO AMBIENTE V. - Las personas jurídicas podrán ser sancionadas con las siguientes penas: 1° La multa, en las condiciones previstas en el artículo 131-38 del Código Penal; 2º La prohibición, contemplada en el apartado 2º del artículo 131-39 del mismo Código, de ejercer la actividad en
cuyo ejercicio o con ocasión de cuyo ejercicio se hubiera cometido la infracción; 3° Las penas mencionadas en los apartados 3°, 4°, 5°, 6°, 8° y 9° del artículo 131-39 del mismo Código.
Artículo L521-22 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 1 IV Diario Oficial de 14 de abril de 2001)
El que impidiere u obstaculizare a los funcionarios o agentes mencionados en el artículo L.521-12, la realización de sus funciones, negándoles la entrada a los locales o de cualquier otra manera, será castigado con la pena de seis meses de prisión y una multa de 7.500 Euros, sin perjuicio, en su caso, de las penas previstas en caso de resistencia a la autoridad por los artículos 433-6 a 433-8 del Código Penal.
Los atestados levantados por estos funcionarios o agentes para comprobar el delito tipificado en el párrafo anterior, serán remitidos inmediatamente al Fiscal de la República. Se remitirá igualmente una copia al interesado.
Artículo L521-23 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 1 IV Diario Oficial de 14 de abril de 2001)
Las condiciones de aplicación del presente capítulo serán determinadas por decreto adoptado en Conseil d'Etat.
Artículo L521-24 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 1 IV Diario Oficial de 14 de abril de 2001)
Cuando un reglamento o una decisión de la Comunidad Europea contenga disposiciones adoptadas para la aplicación de los reglamentos (CE) n° 2455/92, (CE) n° 793/93 y (CE) n° 2037/2000 y que entren dentro del ámbito de aplicación del presente capítulo, un decreto adoptado en Conseil d'Etat dejará constancia de que las mismas constituyen resoluciones ejecutorias amparadas por el presente capítulo.
Capítulo II Control de la comercialización de sustancias activas biocidas y autorización de
comercialización de productos biocidas Artículos L522-2 a L522-1
Artículo L522-1 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
I. - Las disposiciones del presente capítulo se aplicarán a los productos biocidas, es decir a las sustancias activas y preparados que contengan una o más sustancias activas, presentados en la forma en que son suministrados al usuario, destinados a destruir, contrarrestar, neutralizar, impedir la acción o ejercer cualquier tipo de control sobre organismos nocivos por medios químicos o biológicos.
II. - La lista de los tipos y las descripciones de los productos citados será definida por decreto adoptado en Conseil d'Etat.
III. - Las disposiciones del presente capítulo no se aplicarán: 1° A las sustancias y preparados siguientes en la fase de acabado, destinados al usuario final, exclusivamente
utilizados como: medicamentos de uso humano o veterinario mencionados en el artículo L.5111-1 del Código de Salud Pública, productos cosméticos en el sentido de lo dispuesto en el artículo L.513-1 del Código de Salud Pública, productos alimentarios y alimentos para animales.
2° A las sustancias activas y productos biocidas utilizados exclusivamente como sustancias activas de productos fitosanitarios y como productos fitosanitarios;
3° A las sustancias activas y productos biocidas utilizados como componentes de dispositivos médicos; 4° A las categorías de sustancias activas y productos biocidas sujetas a otros procedimientos que no sean los
contemplados en el presente capítulo y que tengan en cuenta los riesgos a los que el ser humano y el medio ambiente se exponen. Estas categorías serán definidas por decreto adoptado en Conseil d'Etat;
5° A las sustancias radiactivas que contengan uno o varios radionucleidos cuya actividad o concentración debiera tenerse en cuenta por razones de radioprotección.
IV. - A efectos del presente capítulo, se entenderá por sustancia activa biocida cualquier sustancia química o el microorganismo, incluidos virus u hongos, que ejerciera una acción general o específica sobre o contra los organismos perjudiciales.
V. - Se entiende por comercialización: 1° Cualquier cesión a título oneroso o gratuito de una sustancia activa o de un producto biocida; 2° La importación de una sustancia activa o de un producto biocida procedente de un Estado que no sea miembro
de la Comunidad Europea, a excepción de sustancias en tránsito; 3° El almacenamiento de una sustancia activa o de un producto biocida, si este almacenamiento no estuviera
destinado a ser exportado fuera del territorio aduanero de la Comunidad Europea o a su eliminación.
Sección I Control de las sustancias activas Artículos L522-2 a
L522-3
Artículo L522-2 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
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CÓDIGO DE MEDIO AMBIENTE I. - La comercialización de una sustancia activa biocida cuyo responsable destinara a productos biocidas, sin que
tuviera el carácter de un producto biocida y sin figurar en la lista comunitaria de sustancias existentes en el mercado comunitario a fecha del 14 de mayo de 2000, podrá ser autorizada provisionalmente con arreglo a determinados procedimientos establecidos por decreto adoptado en Conseil d'Etat, tras el estudio por parte de la autoridad administrativa francesa o de la de otro Estado miembro, de un expediente acompañado de una declaración en la que se certifique que la sustancia será incorporada a un producto biocida.
II. - La comercialización de una sustancia activa utilizada exclusivamente para un producto biocida con el fin de llevar a cabo experimentos o ensayos de investigación y desarrollo, no estará sujeta a las disposiciones del párrafo anterior.
Artículo L522-3 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
Sin perjuicio de lo dispuesto en el punto I del artículo L.522-2, solamente se podrán comercializar y utilizar en productos biocidas las sustancias activas que figuren en las listas comunitarias aplicables en virtud de reglamentos comunitarios, o de textos nacionales adoptados para la aplicación de directivas comunitarias, y en las condiciones fijadas por decreto adoptado en Conseil d'Etat.
En caso de aplicación en el ámbito comunitario del procedimiento de evaluación comparativa, o cuando se dejen de cumplir los requisitos de inclusión en las listas comunitarias, la autorización de comercialización o de utilización podrá ser retirada o denegada, tras haber dirigido un requerimiento al poseedor o al solicitante para que presente sus alegaciones.
Sección II Control de la comercialización de productos biocidas Artículos L522-4 a
L522-7
Artículo L522-4 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
I. - No se podrá comercializar ni utilizar un producto biocida si el mismo no hubiera sido objeto de una autorización concedida por la autoridad administrativa. Esta autorización sólo será concedida, especialmente cuando la o las sustancias activas que contenga figuren en las listas mencionadas en el artículo L.522-3, cuando se hubieran cumplido los requisitos fijados en dichas listas para la o las sustancias activas y cuando ese producto, en las condiciones normales de utilización:
1° Sea suficientemente eficaz; 2° No tenga intrínsecamente o por medio de sus residuos efectos inaceptables, directos o indirectos, sobre la salud
humana y animal, ni sobre el medio ambiente; 3° No provoque una resistencia inaceptable de los organismos a los que se destina o sufrimientos innecesarios en
los animales vertebrados ni efectos inaceptables sobre los organismos a los que no se destina. II. - Además: 1° Se tendrá que poder determinar la naturaleza y la cantidad de las sustancias activas contenidas en el producto
y, en su caso, de las impurezas, de los demás componentes así como también de los residuos, siempre que sean significativos desde el punto de vista toxicológico o ecotoxicológico;
2° Las propiedades físicas y químicas del producto deberán permitir asegurar una utilización, un almacenamiento y un transporte adecuado.
III. - La solicitud de autorización irá acompañada de un expediente. La autorización podrá estar supeditada a determinadas normas y exigencias relativas a la comercialización y a la utilización del producto, que son necesarias para asegurar el cumplimiento de las exigencias antes citadas.
Artículo L522-5 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
I. - La autorización será otorgada por un período limitado que no podrá ser superior a diez años. Podrá ser renovada y podrá ser objeto de revisión y modificación en todo momento. En este caso, la autoridad administrativa podrá pedir al titular de la autorización que le entregue toda la información adicional que sea necesaria para esta revisión. La autorización podrá ser retirada en los casos siguientes:
1° Cuando la sustancia activa hubiera sido excluida de las listas mencionadas en el artículo L.522-3; 2° Cuando dejen de cumplirse las condiciones en base a las cuales se hubiera obtenido la autorización; 3° Cuando se hubieran facilitado indicaciones falsas o engañosas en concepto de los datos en base a los cuales se
hubiera otorgado la autorización; 4° A petición del titular de la autorización. II. - Tras la revocación de la autorización, se podrá conceder un plazo al poseedor del producto para que elimine,
almacene, comercialice o utilice las existencias. III. - Toda denegación, revocación o modificación de autorización deberá ser motivada. Salvo en caso de urgencia,
estas medidas no podrán aplicarse hasta que se haya dirigido un requerimiento al solicitante o al titular de la autorización para que presente sus alegaciones.
IV. - En cualquier caso, los derechos de terceros serán siempre respetados.
Artículo L522-6 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
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CÓDIGO DE MEDIO AMBIENTE I. - Las condiciones de aplicación de los artículos L.522-4 y L.522-5 anteriores serán definidas por decreto
adoptado en Conseil d'Etat. II. - Por decreto adoptado en Conseil d'Etat, se podrán establecer procedimientos simplificados para los productos
biocidas de bajo riesgo y para los productos que hayan sido autorizados anteriormente en otro Estado miembro. III. - Con respecto a los productos que hubieran sido autorizados anteriormente en un Estado miembro, la autoridad
administrativa podrá pedir, en el momento de conceder la autorización, que se realicen modificaciones del etiquetado con arreglo a condiciones establecidas por decreto adoptado en Conseil d'Etat. Provisionalmente, la misma podrá denegar o restringir la autorización de estos productos. Asimismo, podrá rehusar el reconocimiento mutuo de las autorizaciones otorgadas para determinados tipos de productos definidos por decreto adoptado en Conseil d'Etat, y revisar o retirar la autorización de un producto en aplicación de una decisión comunitaria.
Artículo L522-7 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
I. - Por excepción a lo dispuesto en el artículo L.522-4, la autoridad administrativa podrá autorizar provisionalmente la comercialización de un producto biocida:
1° Que contenga una sustancia que no figure en las listas definidas en el artículo L.522-3, para fines que no sean de investigación y desarrollo;
2° Que no respondan a las exigencias citadas en el artículo L.522-4, con la finalidad de un uso limitado y controlado, siempre que esta medida se considere necesaria en razón de un peligro grave que no pudiera ser controlado por otros medios.
II. - No obstante lo dispuesto en el artículo L.522-4, la comercialización de un producto biocida o de una sustancia activa exclusivamente utilizada en un producto biocida para realizar experimentos o ensayos con fines de investigación y desarrollo, estará sujeta a condiciones particulares previstas por decreto adoptado en Conseil d'Etat.
Sección III Disposiciones diversas Artículos L522-8 a
L522-14
Artículo L522-8 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
I. - Los gastos derivados de la conservación, estudio, explotación y peritaje de la información entregada en los expedientes de declaración citados en el artículo L.522-2 o con ocasión de las solicitudes de autorización mencionadas en el artículo L.522-4, podrán ser cargados a los productores, importadores o a los responsables de la comercialización.
II. - La autoridad administrativa podrá exigir a los productores, importadores o responsables de la comercialización la entrega de muestras del producto biocida y de sus componentes.
III. - La autoridad administrativa podrá pedir al responsable de la comercialización, y por cuenta de éste, todos los datos complementarios o ensayos de comprobación que fueren necesarios para la aplicación de las disposiciones contempladas en el presente capítulo.
Artículo L522-9 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
I. - Se prohibirá la utilización de productos biocidas en condiciones que no sean las que están previstas en la decisión de autorización y que se mencionan en la etiqueta prevista en el punto IV del artículo L.522-12.
II. - Un decreto adoptado en Conseil d'Etat definirá las condiciones en las que no se autorizará la venta o la utilización de un producto biocida con destino a un público no profesional, en razón de sus propiedades toxicológicas.
III. - Por decisión de las Autoridades Comunitarias, se podrán adoptar medidas de limitación o de prohibición de utilización o venta, siempre que existan razones para considerar que un producto biocida autorizado en un Estado miembro presenta un riesgo inaceptable para la salud humana o animal o para el medio ambiente. Por los mismos motivos, la autoridad administrativa podrá limitar o prohibir provisionalmente la utilización o venta de un producto biocida. Un decreto adoptado en Conseil d'Etat establecerá las condiciones en las que la autoridad administrativa pueda tomar estas medidas de limitación o de prohibición.
Artículo L522-10 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
El titular de una autorización tendrá la obligación de declarar a la autoridad administrativa toda la información correspondiente a las sustancias activas o al producto biocida que conozca o pueda razonablemente llegar a conocer, y que pudiera tener consecuencias sobre la continuidad de la autorización.
Artículo L522-11 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
Un decreto adoptado en Conseil d'Etat definirá las normas de protección de los datos y las condiciones en las que la autoridad administrativa podrá utilizar a favor de otros solicitantes la información contenida en los expedientes de sustancias y productos biocidas.
Artículo L522-12 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
I. - Lo dispuesto en los puntos I, III y IV del artículo L.521-7 del presente Código se aplicará a la remisión de
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CÓDIGO DE MEDIO AMBIENTE información confidencial correspondiente a sustancias activas y productos biocidas.
II. - No estarán sujetas al secreto industrial y comercial las siguientes informaciones: a) El nombre y la dirección del solicitante; b) El nombre y la dirección del fabricante del producto biocida; c) El nombre y la dirección del fabricante de la sustancia activa; d) Las denominaciones y el contenido de la o las sustancias activas y la denominación del producto biocida; e) el nombre de las otras sustancias clasificadas como peligrosas de conformidad con lo dispuesto en el artículo
L.521-9; f) Los datos físicos y químicos correspondientes a la sustancia activa y al producto biocida; g) Los medios utilizados para hacer inofensiva la sustancia activa o el producto biocida; h) El resumen de los resultados de los ensayos requeridos en aplicación del artículo L.522-4 y que están
destinados a establecer la eficacia de la sustancia o del producto y sus impactos sobre el ser humano, los animales y el medio ambiente, así como también, en su caso, su aptitud para favorecer la resistencia;
i) Los métodos y precauciones que se recomiendan para reducir los riesgos en el momento de la manipulación, almacenaje y transporte, así como los riesgos de incendio u otros;
j) Las fichas de datos de seguridad; k) Los métodos de análisis citados en el artículo L.522-4-II del Código de Medio Ambiente; l) Los métodos de eliminación del producto y de su embalaje; m) Los procedimientos a seguir y las medidas a tomar en caso de que el producto se expandiera o en caso de
fuga; n) Las instrucciones de primeros auxilios en caso de lesiones corporales. III. - Las sustancias activas que son microorganismos y los productos biocidas que los contienen estarán sujetos a
las medidas de prohibición de comercialización o de empleo previstas en el punto II del artículo L.521-6 del presente Código.
IV. - Por decreto adoptado en Conseil d'Etat se establecerán disposiciones complementarias a las definidas en el artículo L.521-9 del presente Código, relativo a la clasificación, embalaje, etiquetado y fichas de datos de seguridad.
Artículo L522-13 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
No obstante lo dispuesto en el artículo L.1342-1 del Código de Salud Pública, el responsable de la comercialización de un producto biocida, de conformidad con las condiciones establecidas por decreto adoptado en Conseil d'Etat¸ tendrá que entregar a un organismo autorizado toda la información necesaria sobre dicho producto a fin de poder prevenir los efectos sobre la salud y satisfacer cualquier solicitud médica destinada al tratamiento de afecciones inducidas por dicho producto o cualquier solicitud de los servicios de urgencia que dependen de la autoridad administrativa.
Artículo L522-14 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
Sin perjuicio de lo dispuesto en el artículo L.121-1 del Código de Consumo, un decreto adoptado en Conseil d'Etat precisará los datos que deberán figurar obligatoriamente y los que no podrán figurar en la publicidad de los productos biocidas.
Sección IV Controles y sanciones Artículos L522-15 a
L522-18
Artículo L522-15 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
Lo dispuesto en los artículos L.521-12 a L.521-20 y en el artículo L.521-22 del presente Código será de aplicación a los controles, la investigación y la comprobación de las infracciones a lo dispuesto en el presente capítulo.
Artículo L522-16 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
I. - Será castigado con la pena de dos años de prisión y una multa de 75.000 euros el que: 1° Comercializare una sustancia activa biocida sin la autorización provisional contemplada en el artículo L.522-2; 2° Comercializare un producto biocida sin la autorización a que se refiere el artículo L.522-4; 3° Comercializare una sustancia activa o un producto biocida en los casos previstos en el punto II del artículo
L.522-7 sin cumplir con las condiciones previstas o tomadas en aplicación de este artículo; 4° Entregare a sabiendas a la autoridad administrativa datos inexactos susceptibles de conllevar, para la sustancia
activa considerada o los productos biocidas que la contienen, prescripciones menos restrictivas que aquellas a las que normalmente hubieran tenido que estar sujetos, o que pudieran disimular información conocida por la empresa;
5° Vendiere a sabiendas a un público no profesional un producto biocida sin cumplir con lo dispuesto en el punto II del artículo L.522-9;
6° Vendiere un producto biocida sin respetar las medidas de limitación o de prohibición contempladas en el punto III del artículo L.522-9.
II. - Será castigado con la pena de seis meses de prisión y una multa de 7.500 Euros el que: 1° Utilizare un producto biocida no autorizado en aplicación del punto I del artículo L.522-4;
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CÓDIGO DE MEDIO AMBIENTE 2° Utilizare un producto biocida sin cumplir con las condiciones establecidas en el punto I del artículo L.522-9 ni con
las medidas de limitación o de prohibición previstas en el punto III del artículo L.522-9; 3° No remitiere a un organismo autorizado toda la información citada en el artículo L.522-13; 4° No indicare en el etiquetado los datos a que se refiere el punto IV del artículo L.522-12. III. - Las personas físicas se expondrán asimismo a las penas accesorias definidas en el artículo L.521-21 del
presente Código. IV. - Las personas jurídicas podrán ser declaradas penalmente responsables en las condiciones previstas en el
artículo 121-2 del Código Penal de las infracciones definidas en los párrafos anteriores. Se expondrán a las penas aplicables a las personas jurídicas que están definidas en el artículo L.521-21 del presente Código.
Artículo L522-17 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
Las condiciones de aplicación del presente capítulo serán determinadas por decreto adoptado en Conseil d'Etat.
Artículo L522-18 (Introducido por la Disposición nº 2001-321 de 11 de abril de 2001 art. 4 Diario Oficial de 14 de abril de 2001)
I. - Estarán sujetas a las disposiciones del presente capítulo las sustancias activas que no figuren en la lista comunitaria de sustancias presentes en el mercado comunitario a fecha de 14 de mayo de 2000 como sustancias activas de un producto biocida para fines que no sean de investigación y desarrollo, así como los productos biocidas que las contengan.
II. - Las sustancias activas que figuren en la lista anteriormente mencionada y los productos que las contengan no estarán sujetos a lo dispuesto en los artículos L.522-3 y L.522-4 hasta tanto se adopte una decisión de inclusión o no en las listas mencionadas en el artículo L.522-3 sobre sustancias activas, en las condiciones establecidas en la reglamentación comunitaria. Las demás disposiciones del presente capítulo serán aplicables a estas sustancias.
En caso de decidirse la no inclusión de las sustancias activas en las listas mencionadas en el artículo L.522-3, se prohibirá la comercialización de las sustancias y productos, de conformidad con las condiciones establecidas por decreto adoptado en Conseil d'Etat.
En lo que respecta a los productos biocidas presentes en el mercado a fecha de 14 de mayo de 2000, el artículo L.522-13 entra en vigor el 14 de mayo de 2003.
Título III Organismos modificados genéticamente Artículos L531-1 a
L537-1
Capítulo I Disposiciones generales Artículos L531-1 a
L531-5
Artículo L531-1 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 18º Diario Oficial de 3 de julio de 2003)
A efectos del presente título y del artículo L.125-3, se entenderá por: 1° Organismo: cualquier entidad biológica no celular, celular o multicelular, capaz de reproducirse o de transferir
material genético, incluyéndose en este concepto a los microorganismos, comprendidos los virus; 2° Organismo modificado genéticamente: cualquier organismo cuyo material genético haya sido modificado de una
manera que no se produce naturalmente en el apareamiento o en la recombinación natural; 3° Utilización: cualquier actividad o conjunto de actividades por las que se modifique el material genético de un
organismo o por las que un organismo modificado genéticamente se cultive, se emplee, se almacene, se destruya o se elimine.
Artículo L531-2 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 18º Diario Oficial de 3 de julio de 2003)
No estarán sujetos a las disposiciones del presente título y del artículo L.125-3, los organismos modificados genéticamente obtenidos por técnicas que, por su carácter natural, no se consideran causantes de una modificación genética o por aquellas que vienen siendo objeto de una utilización tradicional sin que se hubiera derivado inconveniente alguno para la salud pública o el medio ambiente.
La lista de estas técnicas será establecida por decreto, previo dictamen de la Comisión de Ingeniería Genética.
Artículo L531-3 La Comisión de Ingeniería Genética estará encargada de evaluar los riesgos presentados por los organismos
modificados genéticamente y los procedimientos utilizados para su obtención, así como también los peligros potenciales relacionados con la utilización de técnicas de ingeniería genética.
Propondrá las medidas de confinamiento convenientes para prevenir los riesgos que implica la utilización de estos organismos, procedimientos y técnicas. En relación con la tramitación de las solicitudes de autorización, podrá delegar la responsabilidad de visitar las instalaciones a uno o varios de sus miembros.
La Comisión de Ingeniería Genética estará formada por personalidades designadas en función de su competencia científica en campos relacionados con la ingeniería genética y la protección de la salud pública y el medio ambiente, así como por un miembro de la Oficina Parlamentaria de Evaluación de las Opciones Científicas y Tecnológicas. Los
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CÓDIGO DE MEDIO AMBIENTE científicos competentes en materia de protección del medio ambiente y de salud pública representarán al menos la tercera parte de la Comisión.
La misma podrá solicitar la asistencia de otros expertos, si fuera necesario. La Comisión elaborará un informe anual que será remitido por el Gobierno a las dos Asambleas. Los miembros de
la Comisión podrán incluir en dicho informe cualquier valoración personal.
Artículo L531-4 La Comisión para el estudio de la liberación de productos procedentes de la ingeniería biomolecular estará
encargada de evaluar los riesgos relacionados con la liberación voluntaria de organismos modificados genéticamente. Contribuirá, además, a la evaluación de los riesgos relacionados con la comercialización de productos que
contengan, en su totalidad o en parte, organismos modificados genéticamente, así como a la definición de sus condiciones de empleo y presentación.
Estará integrada, al menos en la mitad de sus miembros, por personalidades competentes en materia científica y por un miembro de la Oficina Parlamentaria de Evaluación de Opciones Científicas y Tecnológicas. Formarán parte de la misma representantes de las asociaciones de protección del medio ambiente autorizadas en virtud de lo dispuesto en el artículo L.141-1, de las asociaciones de consumidores, de las agrupaciones de trabajadores y de las agrupaciones profesionales interesadas.
La Comisión elaborará un informe anual que será remitido por el Gobierno a las dos Asambleas. Los miembros de la Comisión podrán incluir en dicho informe una valoración personal.
Artículo L531-5 La composición, atribuciones y normas de funcionamiento de las Comisiones citadas en los artículos L.531-3 y
L.531-4 serán establecidas por decreto.
Capítulo II Utilización confinada de organismos modificados genéticamente Artículos L532-1 a
L532-6
Artículo L532-1 Los organismos, y en especial los microorganismos modificados genéticamente serán clasificados en distintos
grupos en función de los riesgos que presenten para la salud pública o el medio ambiente y, sobre todo, de su patogenicidad. Los criterios de esta clasificación serán determinados por decreto adoptado tras el dictamen de la Comisión de Ingeniería Genética.
Artículo L532-2 Sin perjuicio de lo dispuesto en los capítulos III, V, VI y VII del presente título y en los artículos L.536-4 a L.537-1, la
utilización con fines de enseñanza, investigación o producción industrial de organismos modificados genéticamente que presenten peligros o inconvenientes para la salud pública o el medio ambiente, será realizada en condiciones de confinamiento.
Las modalidades de este confinamiento, que podrá llevarse a cabo mediante barreras físicas, químicas o biológicas, serán definidas en función de la clasificación de los organismos modificados genéticamente utilizados, previo dictamen, en su caso, de la Comisión de Ingeniería Genética.
Artículo L532-3 Cualquier utilización para fines de investigación, desarrollo o enseñanza, de organismos modificados
genéticamente en una instalación pública o privada, y sin que exista comercialización de los productos obtenidos, salvo que sea a título gratuito y para fines de ensayo, estará sujeta a autorización.
Esta autorización, concedida al titular de la explotación de la instalación por la autoridad administrativa, estará supeditada al cumplimiento de determinados requisitos técnicos que definan, en especial, las medidas de confinamiento necesarias para la protección de la salud pública y del medio ambiente y los medios de intervención en caso de siniestro. Si se produjera una modificación notable de las condiciones de utilización de organismos modificados genéticamente que hubieran sido objeto de autorización, se tendrá que solicitar una nueva autorización.
Un decreto adoptado en Conseil d'Etat determinará el procedimiento de otorgamiento de la autorización y las condiciones de consulta de la Comisión de Ingeniería Genética y de información pública, así como los plazos dentro de los cuales se concederá la autorización o a la expiración de los cuales se considerará concedida.
Artículo L532-4 I. - Cuando la autorización corresponda a la primera utilización en una instalación de organismos modificados
genéticamente, el titular de la explotación de la instalación pondrá a disposición pública un expediente de información. II. - Este expediente, depositado en el ayuntamiento del municipio donde esté situada la instalación, tendrá que
tener el visto bueno de la autoridad administrativa. A excepción de la información sujeta al secreto industrial y comercial o protegida por la Ley, o cuya divulgación pudiera perjudicar los intereses del titular de la explotación, el expediente tendrá que contener:
1° Información general sobre la actividad de la instalación y sobre la finalidad de las investigaciones que fueran objeto de la solicitud de autorización;
2° Toda la información necesaria sobre la clasificación de los organismos modificados genéticamente que pudieran ser utilizados en la instalación, así como sobre las medidas de confinamiento, los medios de intervención en caso de siniestro y las prescripciones técnicas a las que estuviera supeditada la autorización en aplicación del artículo L.532-3;
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CÓDIGO DE MEDIO AMBIENTE 3° En su caso, el resumen del dictamen emitido por la Comisión de Ingeniería Genética sobre la solicitud de
autorización; 4° La dirección de la Comisión de Ingeniería Genética ante la que el público podrá efectuar sus eventuales
alegaciones. III. - En el informe anual mencionado en el artículo L.531-3 figurará un resumen de las alegaciones efectuadas así
como una reseña informativa acerca del seguimiento y trámite que se les hubiera dado. IV. - Las disposiciones del presente artículo no se aplicarán cuando la autorización corresponda a la utilización de
organismos modificados genéticamente libres de agentes patógenos que no presenten riesgo grave para la salud pública o el medio ambiente.
V. - Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente artículo.
Artículo L532-5 Siempre que fuera necesaria una nueva evaluación de los peligros o inconvenientes para la salud pública o el
medio ambiente de una utilización de organismos modificados genéticamente ya autorizada, la autoridad administrativa, previo dictamen de la Comisión de Ingeniería Genética y por cuenta del titular de la autorización, podrá:
1° Imponer la modificación de los requisitos técnicos; 2° Suspender la autorización durante el plazo de tiempo necesario para que se ejecuten las medidas oportunas a
fin de eliminar dichos peligros o inconvenientes; 3° Retirar la autorización si los peligros o inconvenientes fueran de tal índole que ninguna medida pudiera
eliminarlos.
Artículo L532-6 (Disposición nº 2000-916 de 19 de septiembre de 2000 anexo Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Cualquier solicitud de autorización o de utilización de organismos modificados genéticamente para fines de investigación, enseñanza o desarrollo estará sujeta al pago de una tasa correspondiente a los gastos de tramitación que será devengada a favor del presupuesto general del Estado. El pago de esta tasa será exigible en el momento de presentar el expediente.
Su importe será de 1.525 euros por expediente. Se reducirá a 305 euros cuando la solicitud de autorización correspondiera a una utilización confinada que no fuera la primera.
La recaudación y el procedimiento contencioso-administrativo a que diera lugar la tasa establecida en el presente artículo estarán bajo la responsabilidad de contables del Tesoro con arreglo a los procedimientos establecidos en los artículos 81 a 95 del Decreto nº 62-1587 de 29 de diciembre de 1962, por el que se establece el reglamento general de la contabilidad pública.
Capítulo III Liberación voluntaria y comercialización de organismos modificados genéticamente Artículos L533-1 a
L533-7
Artículo L533-1 El transporte de organismos modificados genéticamente, cualquiera que fuera el medio, no estará sujeto a lo
dispuesto en el presente capítulo y en los capítulos V, VI y VII.
Artículo L533-2 A efectos del presente capítulo, se entenderá por liberación voluntaria la introducción deliberada en el medio
ambiente de un organismo modificado genéticamente o de una combinación de organismos modificados genéticamente para fines de investigación y desarrollo o con cualquier otra finalidad distinta a su comercialización.
Artículo L533-3 La liberación voluntaria o el programa de coordinación de tales liberaciones estará supeditado a una autorización
previa. Esta autorización será concedida por la autoridad administrativa tras el estudio de los riesgos que plantea la
liberación para la salud pública o para el medio ambiente. La misma podrá ir acompañada de determinados requisitos. Sólo tendrá validez para la actividad para cuyo ejercicio hubiera sido solicitada.
Artículo L533-4 A efectos del presente capítulo, se entenderá por comercialización la puesta a disposición de terceras partes, de
forma gratuita u onerosa, de productos que contengan, en su totalidad o en parte, organismos modificados genéticamente.
Artículo L533-5 La comercialización estará sujeta a autorización previa. Dicha autorización será concedida por la autoridad administrativa tras el estudio de los riesgos que represente la
comercialización para la salud pública o para el medio ambiente. La misma podrá ir acompañada de determinados requisitos. Sólo tendrá validez para el uso previsto en la misma.
Artículo L533-6 Las autorizaciones concedidas por los demás Estados miembros de la Unión Europea, en virtud de las
disposiciones adoptadas por dichos Estados, o de otros Estados Partes en el Acuerdo sobre el Espacio Económico
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CÓDIGO DE MEDIO AMBIENTE Europeo, en aplicación de la Directiva nº 90-220 (CEE) de 23 de abril de 1990, tendrán valor de autorización en virtud del presente capítulo.
No obstante, cuando existan razones válidas para considerar que un producto autorizado por otro Estado miembro u otro Estado Parte da lugar a riesgos para la salud pública o para el medio ambiente, la autoridad administrativa podrá limitar o prohibir provisionalmente su utilización o su comercialización.
Artículo L533-7 El decreto adoptado en Conseil d'Etat y previsto en el artículo L.537-1 precisará, con respecto a las categorías de
productos que son objeto de procedimientos específicos de autorización u homologación para su comercialización, las condiciones en las que se concederá una autorización única en concepto de dichos procedimientos específicos y del presente capítulo.
Capítulo IV Vigilancia biológica del territorio Artículo L534-1
Artículo L534-1 Las disposiciones relativas a la vigilancia de vegetales, incluidas las semillas, de los productos antiparasitarios de
uso agrícola y de los productos asimilados, de los productos fertilizantes y de los soportes de cultivos que contengan, en su totalidad o en parte, organismos modificados genéticamente liberados en el medio ambiente o comercializados, se encuentran recogidas en el Código Rural (libro II, título V, capítulo I).
Capítulo V Control y sanciones administrativas Artículos L535-1 a
L535-8
Artículo L535-1 El que hubiere obtenido una autorización mencionada en los artículos L.533-3 y L.533-5 estará obligado a informar
a la Administración de cualquier elemento nuevo susceptible de modificar la valoración del riesgo para la salud pública o el medio ambiente.
Llegado el caso, adoptará las medidas que fueren necesarias para proteger la salud pública o el medio ambiente.
Artículo L535-2 I. - Cuando estuviera justificado por una nueva evaluación de los riesgos para la salud pública o el medio ambiente
ocasionados por la presencia de organismos modificados genéticamente, la autoridad administrativa, por cuenta del titular de la autorización o de los poseedores de los organismos modificados genéticamente, podrá:
1° Suspender la autorización a la espera de más información y, si procediera, ordenar la retirada de los productos de la venta o prohibir su utilización;
2° Imponer modificaciones en las condiciones de la liberación voluntaria; 3° Retirar la autorización; 4° Ordenar la destrucción de los organismos modificados genéticamente y, en caso de incumplimiento por parte del
titular de la autorización o del poseedor, proceder de oficio a esta destrucción. II. - Salvo en caso de urgencia, estas medidas serán adoptadas tras haber solicitado al titular que presente sus
alegaciones.
Artículo L535-3 I.- El solicitante de una autorización de liberación o de comercialización podrá indicar a la Administración que la
divulgación de la información facilitada para sustentar su solicitud podría perjudicar sus intereses o afectar secretos protegidos por la Ley. La información que la autoridad administrativa hubiera reconocido como confidencial no podrá ser facilitada a terceros.
II. - No podrá ser considerada como confidencial: 1° La información suministrada para sustentar una solicitud de autorización de liberación y que se refiera: a) Al nombre y dirección del solicitante; b) A la descripción resumida del o de los organismos modificados genéticamente; c) A la finalidad de la liberación y al lugar donde será practicada; d) A los métodos y planes de seguimiento de las actividades y de intervención en caso de urgencia; e) A la evaluación de los efectos y de los riesgos para el ser humano y el medio ambiente. 2° La información suministrada para sustentar una solicitud de autorización de comercialización y que se refiera: a) Al nombre y dirección del solicitante; b) A la naturaleza del producto y la descripción resumida del o de los organismos modificados genéticamente que
formen parte de su composición; c) A las condiciones y precauciones de empleo; e) A la evaluación de los efectos y de los riesgos para el ser humano y el medio ambiente. III. - La autoridad administrativa tendrá la facultad de comunicar a la Comisión Europea toda la información
necesaria, incluida la reconocida como confidencial, según lo dispuesto en el punto I del presente artículo. En este último caso, dicha comunicación mencionará expresamente el carácter confidencial de esta información.
IV. - Lo dispuesto en el presente artículo no será de aplicación a las actividades amparadas por el secreto de defensa nacional.
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CÓDIGO DE MEDIO AMBIENTE Artículo L535-4 (Disposición nº 2000-916 de 19 de septiembre de 2000 anexo Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
I. - Toda solicitud de autorización de liberación o de comercialización estará sujeta al pago de una tasa correspondiente a los gastos de tramitación devengada a favor del presupuesto general del Estado. Su pago será exigible en el momento de presentar el expediente.
II. - El importe de esta tasa será de 1.525 euros por expediente de solicitud. Su importe quedará reducido a 610 euros:
1° Cuando la autorización fuera solicitada para una liberación que ya hubiera sido objeto de una autorización al menos durante el último año;
2° Para cualquier solicitud de modificación de la utilización de un producto que contuviera, en su totalidad o en parte, organismos modificados genéticamente, cuya comercialización hubiera sido autorizada anteriormente.
III. - La recaudación y el procedimiento contencioso-administrativo a que diera lugar la aplicación de la tasa en el presente artículo estarán bajo la responsabilidad de los contables del Tesoro, con arreglo a los procedimientos establecidos en los artículos 81 a 95 del Decreto nº 62-1587 de 29 de diciembre de 1962, por el que se establece el reglamento general de la contabilidad pública.
Artículo L535-5 I. - Con independencia de las acciones penales que se pudieran ejercer y de las medidas contempladas en el
artículo L.535-2, cuando no se cumplieran las disposiciones impuestas en la autorización, la autoridad competente dirigirá un requerimiento al titular de la autorización para que las cumpla en un plazo determinado.
II. - Si transcurrido el plazo fijado para su ejecución, el titular de la autorización no hubiera cumplido con lo ordenado en dicho requerimiento, la autoridad competente podrá:
1° Obligar al titular de la autorización a consignar ante un contable público una suma equivalente al importe de los trabajos a realizar, la cual será restituida al titular de la explotación conforme vaya ejecutando las medidas impuestas. Esta suma se recaudará en las mismas condiciones que las establecidas en materia de créditos que no sean relativos al impuesto y al patrimonio.
2° Ordenar que de oficio y por cuenta del titular de la autorización se proceda a la ejecución de las medidas impuestas;
3° Suspender la autorización hasta el cumplimiento de las medidas impuestas y, en su caso, adoptar las disposiciones provisionales que fueren necesarias.
III. - Las cantidades consignadas en aplicación de lo dispuesto en el apartado 1º del punto II, podrán ser utilizadas para pagar los gastos derivados de la ejecución de oficio de las medidas previstas en los apartados 2º y 3º del punto II del presente artículo.
Artículo L535-6 Con independencia de las acciones penales que se pudieran ejercer, cuando se produjera una liberación voluntaria
sin que hubiera sido objeto de la autorización requerida por el presente título, la autoridad administrativa ordenará su suspensión.
En caso de amenaza grave para la salud pública o el medio ambiente, podrá determinar las medidas provisionales que permitan prevenir los peligros de la liberación o, si fuere necesario, solicitar que se proceda de oficio, por cuenta del responsable de la liberación, a la destrucción de los organismos modificados genéticamente.
Artículo L535-7 Con independencia de las acciones penales que se pudieran ejercer, la autoridad administrativa podrá ordenar la
consignación de los productos comercializados sin autorización o su incautación. En caso de amenaza grave para la salud pública o el medio ambiente, podrá imponer cualquier medida provisional
para asegurar la protección de la salud pública o del medio ambiente o, si fuere necesario, ordenar que se proceda de oficio a la destrucción de los productos comercializados sin autorización. Estas medidas correrán a cargo del responsable de la comercialización.
Artículo L535-8 Para la recaudación de las sumas previstas en el apartado 1º del punto II del artículo L.535-5 o de los anticipos de
fondos aprobados por el Estado para la ejecución de las medidas contempladas en los apartados 2º y 3º del punto II del artículo L.535-5 y en los artículos L.535-6 y L.535-7, el Estado ostenta un privilegio en los mismos términos que el que está contemplado en el artículo 1920 del Código General de Impuestos.
Cuando la orden de ejecución dictada en aplicación de una medida de consignación ordenada por la autoridad administrativa fuera objeto de una oposición ante la jurisdicción administrativa, el Presidente del Tribunal Administrativo o el Magistrado en quien éste delegue, resolviendo en procedimiento sumario, podrá decidir, a pesar de este recurso y a solicitud del representante del Estado o de cualquier persona interesada, que el recurso no tenga efecto suspensivo, si ninguna de las causas alegadas por el titular de la explotación le pareciera procedente. El Presidente del Tribunal resolverá en el plazo de quince días a partir de la interposición de la demanda.
Capítulo VI Disposiciones penales Artículos L536-1 a
L536-7
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CÓDIGO DE MEDIO AMBIENTE Sección I Comprobación de las infracciones Artículos L536-1 a
L536-2
Artículo L536-1 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 18º Diario Oficial de 3 de julio de 2003)
Además de los funcionarios y agentes de la policía judicial que ejerzan sus funciones de conformidad con las disposiciones del Código de Proceso Penal, podrán investigar y comprobar mediante atestado las infracciones a lo dispuesto en los artículo L.125-3, L.532-3, L.532-4, L.532-5, L.532-6, L.533-2 y L.533-3 y en los reglamentos dictados para su aplicación, los funcionarios de la organización técnica del Estado, los funcionarios titulares de un diploma técnico o los agentes habilitados a estos efectos y que hubieran prestado juramento en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Para el cumplimiento de su misión, los agentes mencionados en el presente artículo tendrán acceso a las instalaciones y lugares donde se lleven a cabo dichas operaciones, exceptuando los locales que sirvan de domicilio.
Estos agentes podrán acceder a los lugares a instalaciones mencionados en cualquier momento si se estuviera llevando a cabo una operación de liberación y, en los demás casos, entre las 8 y las 20 horas. El Fiscal de la República será previamente informado y les dará, en su caso, las instrucciones necesarias.
Los atestados serán remitidos inmediatamente al Fiscal de la República. Se remitirá copia al interesado y a la administración competente para conceder la autorización de liberación voluntaria. Los hechos recogidos en los atestados se presumirán ciertos, salvo prueba en contrario.
Artículo L536-2 La investigación y la comprobación de las infracciones a lo dispuesto en los artículos L.533-4 a L.533-7 y en los
reglamentos dictados para su aplicación serán realizadas, en función de los productos considerados, por los agentes competentes en virtud de las leyes aplicables a dichos productos y en las condiciones establecidas en dichas leyes.
Sección II Sanciones Artículos L536-3 a
L536-7
Artículo L536-3 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
El que explotare una instalación utilizando organismos modificados genéticamente para fines de investigación, desarrollo o enseñanza sin la autorización requerida en aplicación del artículo L.532-3, o contraviniendo los requisitos técnicos a los que esta autorización está supeditada, será castigado con la pena de un año de prisión y una multa de 75.000 euros.
En caso de condena, el Tribunal podrá prohibir las actividades de funcionamiento de la instalación. La prohibición dejará de tener efecto cuando, con posterioridad, se conceda una autorización en las condiciones establecidas en el presente título. Se podrá ordenar la ejecución provisional de esta prohibición.
El que explotare una instalación utilizando organismos modificados genéticamente para fines de investigación o enseñanza incumpliendo las disposiciones impuestas en aplicación del apartado 1º del artículo L.532-5, o contraviniendo una medida de suspensión o de revocación de la autorización, adoptada en aplicación de los apartados 2º y 3º del artículo L.532-5, será castigado con la pena de dos años de prisión y una multa de 150.000 euros.
En caso de condena, el Tribunal podrá prohibir las actividades de funcionamiento de la instalación.
Artículo L536-4 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Será castigado con la pena de un año de prisión y una multa de 75.000 euros el que sin la autorización requerida: 1° Realizare una liberación voluntaria de organismos modificados genéticamente o de una combinación de ellos; 2° Comercializare un producto que consista en organismos modificados genéticamente o que contenga dichos
organismos.
Artículo L536-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
El que no cumpliere una medida de suspensión, retirada, prohibición o consignación, adoptada en aplicación de los artículos L.535-2, L.535-5 o L.535-6, será castigado con la pena de dos años de prisión y una multa de 150.000 euros.
El que persistiere en la realización de una liberación voluntaria o una comercialización sin dar cumplimiento al requerimiento que se le hubiera dirigido en aplicación del punto I del artículo L.535-5, será castigado con la pena de seis meses de prisión y una multa de 75.000 euros.
Artículo L536-6 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
El que obstaculizare el ejercicio de las funciones de los agentes mencionados en los artículos L.536-1 y L.536-2,
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CÓDIGO DE MEDIO AMBIENTE será castigado con la pena de un año de prisión y una multa de 15.000 euros.
Artículo L536-7 En caso de condena por infracción a lo dispuesto en el presente capítulo, el Tribunal podrá ordenar por cuenta del
condenado la publicación íntegra o por extractos de su resolución y, eventualmente, la difusión, en uno o varios periódicos, de un mensaje cuyos términos establecerá expresamente, para informar públicamente sobre los motivos y el contenido de su resolución. Podrá ordenar igualmente su publicación mediante edictos en las condiciones y bajo las penas previstas, según el caso, en los artículos 131-35 y 434-39 del Código Penal, siempre que los gastos de esta publicidad no sean superiores a la cuantía de la multa impuesta.
Capítulo VII Disposiciones diversas Artículo L537-1
Artículo L537-1 Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación de los capítulos III, V y VI del
presente título.
Título IV Residuos Artículos L541-1 a
L542-14
Capítulo I Eliminación de residuos y recuperación de materiales Artículos L541-1 a
L541-50
Sección I Disposiciones generales Artículos L541-1 a
L541-8
Artículo L541-1 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 19º Diario Oficial de 3 de julio de 2003)
I. - Las disposiciones del presente capítulo y del artículo L.125-1 tienen por objeto: 1° Prevenir o reducir la producción y los efectos nocivos de los residuos, interviniendo especialmente en la
fabricación y distribución de los productos; 2° Organizar transporte de residuos y limitarlo en distancia y volumen; 3° Valorizar los residuos por medio de la reutilización, el reciclado o cualquier otra acción con el fin de obtener
materiales reutilizables o energía a partir de los residuos; 4° Informar públicamente sobre los efectos para el medio ambiente y la salud pública de las actividades de
producción y eliminación de residuos, sin perjuicio de las reglas de confidencialidad previstas por la Ley, así como sobre las medidas destinadas a prevenir o a compensar sus efectos perjudiciales.
II. - A efectos del presente capítulo, se entenderá por residuo cualquier desecho de un proceso de producción, transformación o utilización, cualquier sustancia, material o producto o, en términos más generales, cualquier bien mueble abandonado o que su poseedor tenga intención de abandonar.
III. - A efectos del presente capítulo, se entenderá por residuo final todo aquel residuo que, derivado o no del tratamiento de un residuo, ya no es susceptible de ser tratado con arreglo a las condiciones técnicas y económicas del momento, principalmente por extracción de la parte valorizable o por reducción de su carácter contaminante o peligroso.
Artículo L541-2 Todo aquel que produzca o posea residuos en condiciones susceptibles de producir efectos nocivos sobre el suelo,
la flora y la fauna, de degradar los espacios naturales y los paisajes, de contaminar el aire y las aguas, de originar ruidos y olores y, en general, de atentar contra la salud del ser humano y el medio ambiente, tendrá la obligación de proceder o hacer proceder a su eliminación de conformidad con lo dispuesto en el presente capítulo, en condiciones apropiadas para evitar dichos efectos.
La eliminación de residuos conlleva las operaciones de recogida, transporte, almacenamiento, clasificación y tratamiento necesarias para la recuperación de los elementos y materiales reutilizables o de la energía, así como también para el depósito o el vertido al medio natural de todos los demás productos en condiciones apropiadas para evitar los daños mencionados en el párrafo anterior.
Artículo L541-3 (Ley nº 2003-699 de 30 de julio de 2003 art. 32 Diario Oficial de 31 de julio de 2003)
En caso de contaminación o de riesgo de contaminación del suelo, o en caso de abandono, depósito o tratamiento de residuos incumpliendo lo dispuesto en el presente capítulo y en los reglamentos dictados para su aplicación, la autoridad con facultad para ejercer las funciones de policía, previo requerimiento, podrá encargarse de oficio de la ejecución de los trabajos que fueran necesarios por cuenta del responsable. El Ministro de Medio Ambiente podrá encargar la ejecución de los trabajos ordenados de oficio a la Agencia de Medio Ambiente y de Control de la Energía. Asimismo, la autoridad con facultad para ejercer las funciones de policía podrá obligar al responsable a consignar ante un contable público una suma correspondiente al valor del importe de los trabajos a realizar, la cual le será restituida
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CÓDIGO DE MEDIO AMBIENTE conforme vaya procediendo a la ejecución de los trabajos. Las cantidades consignadas podrán ser utilizadas, en su caso, para pagar los gastos derivados de la ejecución de oficio. Cuando la Agencia de Medio Ambiente y de Control de la Energía ejecute los trabajos ordenados de oficio, las cantidades consignadas le serán reservadas a solicitud de la misma.
Se procederá, en su caso, a la recaudación de estas sumas en las mismas condiciones que las establecidas en materia de créditos que no sean relativos al impuesto y al patrimonio. Para el cobro de esta suma, el Estado ostenta un privilegio en los mismos términos que el que está contemplado en el artículo 1920 del Código General de Impuestos.
Cuando la orden de ejecución dictada en aplicación de una medida de consignación ordenada por la autoridad administrativa fuera objeto de una oposición ante la jurisdicción administrativa, el Presidente del Tribunal Administrativo o el Magistrado en quien éste delegue, resolviendo en procedimiento sumario y a pesar de dicha oposición, a solicitud de la autoridad titular del ejercicio del poder policial o de cualquier persona interesada, que el recurso no tenga efecto suspensivo, si ninguna de las causas alegadas por el titular de la explotación le pareciera procedente. El Presidente del Tribunal resolverá en el plazo de quince días a partir de la interposición de la demanda.
Se considerará abandono cualquier acción que, bajo apariencia de una cesión a título gratuito u oneroso, tenga por objeto sustraer a su autor de la responsabilidad de cumplir con lo dispuesto en el presente capítulo y en los reglamentos dictados para su aplicación.
Cuando el titular de la explotación de una instalación de eliminación de residuos hubiera sido objeto de una medida de consignación en aplicación del presente artículo o del artículo L.514-1, no podrá obtener una autorización para explotar otra instalación de eliminación de residuos hasta tanto hubiera abonado la suma fijada.
Cuando, por desaparición o insolvencia del productor o del poseedor de residuos, la aplicación de lo dispuesto en el párrafo primero no hubiera permitido obtener la restauración de los suelos contaminados por dichos residuos, el Estado podrá encargar esta restauración a la Agencia de Medio Ambiente y de Control de la Energía, con la eventual ayuda financiera de las entidades territoriales.
Los trabajos mencionados en el párrafo anterior y, en su caso, la adquisición de los bienes inmuebles podrán ser declarados de utilidad pública a petición del Estado. La declaración de utilidad pública será acordada previa consulta de las entidades territoriales interesadas y tras la consulta pública que será llevada a cabo en las formas contempladas en el Código de la Expropiación por Causa de Utilidad Pública. Si una de las entidades territoriales interesadas, el comisario de investigación o la Comisión de investigación hubiera emitido un dictamen desfavorable, la declaración de utilidad pública será acordada por decreto adoptado en Conseil d'Etat.
Artículo L541-4 Lo dispuesto en el presente capítulo se aplicará sin perjuicio de las disposiciones especiales relativas a las
instalaciones clasificadas para la protección del medio ambiente, a los residuos radiactivos, a las aguas usadas, a los efluentes gaseosos, a los cadáveres de animales, a los restos de aeronaves, a los pecios de barcos naufragados, a las inmersiones así como a los vertidos procedentes de los buques. Lo dispuesto en el presente capítulo se aplicará sin perjuicio de la responsabilidad en que incurriera el que causara daños a terceros, especialmente por eliminación de residuos que hubiera poseído o transportado, o procedentes de productos que hubiera fabricado.
Artículo L541-5 Los gastos derivados de la ejecución de análisis, peritajes o pruebas técnicas que fueran necesarios para el
cumplimiento de lo dispuesto en el presente capítulo correrán por cuenta del poseedor, transportista, productor, eliminador, exportador o importador según proceda.
Artículo L541-6 Cuando las personas jurídicas de derecho público intervinieran, material o financieramente, para atenuar los daños
causados por un incidente o un accidente relacionado con una operación de eliminación de residuos o para evitar la agravación de estos daños, tendrán derecho al reembolso, por parte de las personas responsables de este incidente o accidente, de los gastos que hayan realizado, sin perjuicio de la indemnización de los demás daños sufridos. Por este concepto, podrán constituirse en parte civil ante las jurisdicciones penales competentes de las acciones judiciales iniciadas a consecuencia del incidente o accidente.
Esta acción será ejercida sin perjuicio de los derechos que tienen las asociaciones de protección del medio ambiente autorizadas en virtud del artículo L.141-1.
Artículo L541-7 Las empresas que produjeran, importaran, exportaran, eliminaran, transportaran, o se dedicaran a la
intermediación o la comercialización de residuos pertenecientes a las categorías definidas por decreto como susceptibles de causar, bien en su estado normal, bien en el momento de su eliminación, los daños mencionados en el artículo L.541-2, deberán entregar a la Administración toda la información relativa al origen, naturaleza, características, cantidades, destino y métodos de eliminación de los residuos que produjeran o entregaran a terceros, o de los residuos de los que se hicieran cargo.
Artículo L541-8 Un decreto adoptado en Conseil d'Etat regulará el transporte, la intermediación y la comercialización de los
residuos contemplados en el artículo L.541-7. Estas actividades estarán sujetas a autorización administrativa cuando los residuos presentaran graves peligros o inconvenientes para los intereses protegidos por la presente sección, o sujetas a declaración cuando no plantearan dichos peligros o inconvenientes.
El transporte, la intermediación y la comercialización de los residuos sujetos a declaración o a autorización, tendrán
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CÓDIGO DE MEDIO AMBIENTE que cumplir con los objetivos contemplados en el artículo L.541-1.
Sección II Producción y distribución de productos generadores de residuos Artículos L541-9 a
L541-10-2
Artículo L541-9 Los productores, importadores o exportadores tendrán que demostrar que los residuos generados, en cualquiera
de sus fases, por los productos que fabrican, importan o exportan pueden ser eliminados en las condiciones mencionadas en el artículo L.541-2. La Administración podrá solicitarles toda la información necesaria sobre los métodos de eliminación y las consecuencias de su ejecución.
Artículo L541-10 La fabricación, la posesión para la venta, la oferta, la venta y la puesta a disposición del usuario, cualquiera que
fuera su forma, de productos generadores de residuos, podrán ser reguladas con el fin de facilitar la eliminación de dichos residuos o de prohibirlos. En caso de necesidad
Se podrá obligar a los productores, importadores y distribuidores de estos productos o de los elementos y materiales que formaran parte de su fabricación, a eliminar o hacer que se eliminen los residuos que generan.
Se podrá obligar a estos mismos productores, importadores y distribuidores a prestar su apoyo, mediante una justa remuneración, para la eliminación de los residuos procedentes de productos idénticos o similares comercializados o distribuidos antes del 18 de julio de 1975.
Se podrá ordenar a los poseedores de residuos de dichos productos que los entreguen en los establecimientos o servicios designados por la Administración, en las condiciones que la misma defina.
Artículo L541-10-1 (Ley nº 2003-1312 de 30 de diciembre de 2003 art. 20 I Ley de finanzas rectificativa para 2003 Diario Oficial de 31 de diciembre de 2003) (Ley nº 2004-1485 de 30 de diciembre de 2004 art. 61 Ley de finanzas rectificativa para 2004 Diario Oficial de 31 de diciembre de 2004) (Ley nº 2005-516 de 20 de mayo de 2005 art. 23 Diario Oficial de 21 de mayo de 2005)
A partir del 1 de enero de 2005, cualquier persona física o jurídica que, gratuitamente y por cuenta propia, pusiera o hiciera poner a disposición de particulares sin que estos lo hubieran solicitado, o distribuyera o hiciera distribuir material impreso (disposiciones declaradas contrarias a la Constitución por decisión del Consejo Constitucional N° 2003-488 DC de 29 de diciembre de 2003) en los buzones, en los espacios comunes de las viviendas colectivas, en los lugares públicos o en la vía pública, deberá contribuir a la recogida, valorización y eliminación de los residuos generados de esta forma. Dicha contribución podrá tener la forma de prestaciones en especie. No obstante, no estarán sujetas a dicha contribución la puesta a disposición pública de información por parte de un servicio público en virtud de una obligación establecida por ley o reglamento, o mediante una publicación en la prensa en el sentido del artículo 1° de la Ley N° 86-897 de 1 de agosto de 1986 relativa a la reforma del régimen jurídico de la prensa, ni la distribución de envíos de correspondencia en el sentido del artículo L.1 del Código de Correos y Comunicaciones Electrónicas.
Cuando se trate de una contribución financiera, ésta deberá ser abonada a un organismo autorizado por los Ministros de Medio Ambiente, de las Entidades Territoriales, de Economía y de Industria, quienes la asignarán a las entidades territoriales en virtud de su participación en los costes de recogida, valorización y eliminación de dichos residuos.
La contribución en especie estará basada en el principio de voluntariado de las entidades públicas de cooperación intermunicipal encargadas de la eliminación de los residuos. Consistirá, para aquellas que lo deseen, en la puesta a disposición de espacios de comunicación en beneficio de las entidades de cooperación intermunicipal encargadas de la eliminación de residuos domésticos. Estos espacios de comunicación será utilizados para promover la recogida, la valorización y la eliminación de los residuos.
Las contribuciones financieras y en especie serán determinadas con arreglo a un baremo fijado por decreto. La persona u organismo que no satisficiera voluntariamente dicha contribución estará sujeta al pago de la tasa
prevista en el apartado 9° del punto I del artículo 266 sexies del Código de Aduanas. Por decreto se establecerán las condiciones de aplicación del presente artículo.
Artículo L541-10-2 (Introducido por la Ley nº 2005-1720 de 30 de diciembre de 2005 art. 87 Ley de finanzas rectificativa para 2005 Diario Oficial de 31 de diciembre de 2005)
A partir del 1 de enero de 2006, cualquier persona que fabricara, importara o introdujera en el mercado nacional, a título profesional, aparatos eléctricos y electrónicos domésticos pertenecientes a las categorías mencionadas en los anexos IA y IB de la Directiva 2002/96/CE de Parlamento Europeo y del Consejo, de 27 de enero de 2003, sobre residuos de aparatos eléctricos y electrónicos, deberá asegurar o contribuir a asegurar la recogida, recuperación y tratamiento de residuos de aparatos eléctricos y electrónicos domésticos, cualquiera que fuera su fecha de comercialización. En el caso de que los aparatos fueran comercializados bajo una única marca de un distribuidor, éste deberá asegurar o contribuir a asegurar la recogida, recuperación y tratamiento de residuos de aparatos eléctricos y electrónicos en sustitución de la persona que fabricara, importara o introdujera dichos aparatos en el mercado nacional.
Los costes de la recogida selectiva de residuos de aparatos eléctricos y electrónicos domésticos asumidos por las entidades territoriales serán objeto de una compensación por parte de un organismo coordinador autorizado, que estará
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CÓDIGO DE MEDIO AMBIENTE encargado de redistribuir la fracción equivalente de la contribución financiera que recibiera de las personas mencionadas en el primer párrafo.
Durante un periodo transitorio que irá del 1 de enero de 2006 al 13 de febrero de 2013, para aquellos aparatos que estén incluidos en un listado establecido por orden conjunta de los Ministros de Medio Ambiente, Economía, Industria y Consumo, las personas citadas en el párrafo primero y los compradores deberán mencionar en el pie de la factura de cualquier aparato eléctrico y electrónico nuevo de uso doméstico, además del precio de venta antes de impuestos, los costes unitarios de eliminación de dichos residuos.
La eliminación de estos residuos procedentes de las recogidas selectivas estará asegurada por sistemas a los que dichas personas aportarán su contribución financiera de manera proporcional y que serán autorizados o aprobados por órdenes conjuntas de los Ministros de Economía, Industria, Medio Ambiente y Entidades Territoriales.
Los costes unitarios de eliminación de dichos residuos no excederán de los realmente sufragados. Los compradores repercutirán de idéntica manera dichos costes unitarios en el consumidor final, informándole los mismos con arreglo a los medios previstos en el artículo L. 113-3 del Código de Consumo.
Sección III Eliminación de residuos Artículos L541-11 a
L541-39
Subsección 1 Planes de eliminación de residuos Artículos L541-11 a
L541-15
Artículo L541-11 El Ministro de Medio Ambiente establecerá planes nacionales de eliminación de determinadas categorías de
residuos, cuya lista será determinada por decreto adoptado en Conseil d'Etat, en base a su grado de nocividad o a sus particularidades de tratamiento y almacenamiento.
Junto con los representantes del Estado y de los organismos públicos interesados, participarán en la elaboración de estos planes, reunidos en una Comisión del Plan, representantes de las entidades territoriales interesadas, de las organizaciones profesionales que intervengan en la producción y eliminación de los residuos y de las asociaciones de protección del medio ambiente autorizadas en virtud del artículo L.141-1..
Una vez elaborados, estos planes se pondrán a disposición pública durante dos meses. Transcurridos estos dos meses, dichos planes se modificarán con el objeto de incorporar, en su caso, las
observaciones formuladas y se procederá a su posterior publicación. Estos planes tendrán por objeto la creación de complejos industriales de eliminación de residuos coordinados entre
sí y establecerán las prioridades que se debieran en cuenta para alcanzar los objetivos definidos en el artículo L.541-1.
Artículo L541-12 La región participará en la política de eliminación de residuos, en las condiciones establecidas en el presente
capítulo. A estos efectos, podrá facilitar todas las operaciones de eliminación de residuos finales y en particular, podrá
suscribir participaciones en sociedades constituidas para la creación o la gestión de instalaciones de almacenamiento de residuos finales, con arreglo a las condiciones previstas por el Código General de Entidades Territoriales (Parte Primera, libro V, título II).
Artículo L541-13 (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 IV Diario Oficial de 28 de febrero de 2002) (Disposición nº 2004-809 de 13 de agosto de 2004 art. 47 Diario Oficial de 17 de agosto de 2004 con entrada en vigor el 1 de enero de 2005)
I. - Cada región dispondrá de un plan regional o interregional de eliminación de residuos industriales especiales. II. - A fin de alcanzar los objetivos citados en los artículos L. 541-1 y L. 541-24, el plan incluirá: 1° Una proyección a diez años vista de las cantidades de residuos a eliminar en ese plazo según su origen, su
naturaleza y su composición; 2° El inventario de las instalaciones existentes de eliminación de estos residuos; 3° La indicación de las instalaciones cuya creación se considere necesaria para poder alcanzar los objetivos
mencionados más arriba; 4° Las prioridades que deberán tenerse en cuenta para alcanzar estos objetivos, considerando sobre todo la
evolución económica y tecnológica previsible. III. - El plan deberá prever, entre las prioridades contempladas, un centro de almacenamiento para estos residuos. IV. - El plan tendrá en cuenta las necesidades y capacidades de las zonas vecinas que se encuentren fuera de su
ámbito territorial de aplicación. V. - El proyecto de plan será elaborado a iniciativa y bajo la responsabilidad del Presidente del Consejo Regional. VI. - El proyecto de plan será sometido al dictamen de una Comisión formada, respectivamente, por los
representantes de las entidades territoriales, del Estado y de los organismos públicos interesados, de las organizaciones profesionales que intervienen en la producción y en la eliminación de los residuos y de las asociaciones autorizadas de protección del medio ambiente. Será sometido asimismo al dictamen de los Consejos regionales limítrofes. El mismo será eventualmente modificado a fin de tener en cuenta estos dictámenes. En el supuesto de que
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CÓDIGO DE MEDIO AMBIENTE fuera el Estado quien elaborara el plan, con arreglo a las condiciones establecidas en el artículo L. 541-15, se requerirá igualmente el dictamen del Consejo Regional.
VII. - El proyecto de plan será puesto a disposición pública durante dos meses, al término de los cuales será aprobado por acuerdo del Consejo Regional y publicado.
Nota: Ley 2004-809 de 13 de agosto de 2004, art. 48: disposiciones transitorias relativas a los planes de eliminación de residuos domésticos.
Artículo L541-14 (Disposición nº 2004-809 de 13 de agosto de 2004 art. 45 I Diario Oficial de 17 de agosto de 2004 con entrada en vigor el 1 de enero de 2005) (Disposición nº 2004-637 de 1 de julio de 2004 art. 34-5 Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2006) (Ley nº 2004-1343 de 9 de diciembre de 2004 art. 78 XXXII 4° Diario Oficial de 10 de diciembre de 2004 con entrada en vigor el 1 de julio de 2005)
I. - En cada departamento se establecerá un plan departamental o interdepartamental de eliminación de los residuos domésticos y demás residuos mencionados en el artículo L. 2224-14 del Código General de Entidades Territoriales. La región Ile-de-France dispondrá de un plan regional.
II. - A fin de alcanzar los objetivos citados en los artículos L. 541-1 y L. 541-24, el plan: 1° Establecerá el inventario de los tipos, cantidades y origen de los residuos que se debieran eliminar, incluso por
medio de su valorización, y de las instalaciones adecuadas que existieran; 2° Establecerá el inventario de los documentos de orientación y los programas de las personas jurídicas de
derecho público y de sus concesionarios en materia de residuos; 3° Enunciará las prioridades que se debieran tener en cuenta, principalmente la evolución demográfica y
económica previsible: a) Para la creación de nuevas instalaciones, y podrá indicar los sectores geográficos que considere mejor adaptados para éstas; b) Para la recogida, clasificación y tratamiento de los residuos, a fin de garantizar un alto nivel de protección del
medio ambiente en función de los medios económicos y financieros que fueran necesarios para su ejecución. III. - El plan tendrá en cuenta las necesidades y capacidades de las zonas vecinas que se encuentren fuera de su
ámbito de aplicación y las propuestas de cooperación intermunicipal. IV. - Dicho plan deberá prever, entre sus prioridades, centros para el almacenamiento de residuos finales
procedentes del tratamiento de los residuos domésticos y asimilados. V. - El proyecto de plan será elaborado a iniciativa y bajo la responsabilidad del Presidente del Consejo General y,
en la región Ile-de-France, del Presidente del Consejo Regional.. Las entidades territoriales o sus agrupaciones que ejercieran la competencia de eliminación o tratamiento de residuos y, en la región Ile-de-France, los departamentos, participarán en su elaboración.
VI. - El proyecto de plan será establecido de común acuerdo con una Comisión Consultiva que estará formada por representantes de los municipios y de sus agrupaciones, del Consejo General, del Estado, de los organismos públicos interesados, de los profesionales interesados, de las asociaciones autorizadas de protección del medio ambiente y de las asociaciones autorizadas de consumidores, así como, en la región Ile-de-France, del Consejo Regional, de los Consejos Generales y de las asociaciones autorizadas de protección del medio ambiente.
VII. - El proyecto de plan será sometido al dictamen del representante del Estado en el departamento, al de la comisión departamental competente en materia de medio ambiente, riesgos sanitarios y tecnológicos y al de los Consejos Generales de los departamentos limítrofes. En Ile-de-France, el mismo será sometido al dictamen del representante del Estado en la región, al de los Consejos Generales y al de las comisiones departamentales competentes en materia de medio ambiente, riesgos sanitarios y tecnológicos de los departamentos situados en la región. Podrá ser modificado a fin de tener en cuenta dichos dictámenes, que se considerarán favorables transcurrido el plazo de tres meses a partir de la recepción del proyecto sin pronunciamiento expreso. En el supuesto de que fuera el Estado quien elaborara el plan, con arreglo a las condiciones establecidas en el artículo L. 541-15, se requerirá igualmente el dictamen del Consejo General y, en Ile-de-France, el del. Consejo Regional.
VIII. - El proyecto de plan será sometido a consulta pública, al término de la cual será aprobado por acuerdo del Consejo General o, en el caso de Ile-de-France, del Consejo Regional.
NOTA: El artículo 34-5 de la Disposición n° 2004-637 de 1 de julio de 2004 ha sido introducido por al artículo 78 XXXII 4° de la Ley n° 2004-1343 de 9 de diciembre de 2004.
El artículo 34-7 de la misma disposición, introducido por el artículo 78 XXXII 4° de la Ley n° 2004-1343 fija la entrada en vigor el 1 de julio de 2005.
Artículo L541-15 (Ley nº 2002-276 de 27 de febrero de 2002 art. 109 IV b Diario Oficial de 28 de febrero de 2002) (Disposición nº 2004-809 de 13 de agosto de 2004 art. 46 Diario Oficial de 17 de agosto de 2004 con entrada en vigor el 1 de enero de 2005)
En las zonas de aplicación de los planes citados en los artículos L. 541-11, L. 541-13 y L. 541-14, las decisiones adoptadas por las personas jurídicas de derecho público y sus concesionarios en materia de eliminación de residuos y, especialmente, las decisiones adoptadas en aplicación del título I del presente libro tendrán que ser compatibles con estos planes.
Estos planes serán revisados con arreglo a un procedimiento que será idéntico al de su adopción.
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CÓDIGO DE MEDIO AMBIENTE Las condiciones y procedimientos de elaboración, publicación y revisión de los planes serán determinados por
decreto adoptado en Conseil d'Etat. Este decreto establecerá, en particular, los procedimientos de consulta pública, las medidas de publicidad a adoptar en el momento de la elaboración de los planes y tras su adopción, así como el procedimiento simplificado de revisión de los planes que fuera aplicable siempre que las modificaciones previstas no alteren su estructura general. Este decreto establecerá igualmente las condiciones en las que el representante del Estado podrá solicitar al Presidente del Consejo General o al Presidente del Consejo Regional un nuevo acuerdo sobre los proyectos de planes citados en los artículos L. 541-13 y L. 541-14 o la elaboración o la revisión de dichos planes, así como las condiciones en las que podrá él mismo elaborarlos o revisarlos cuando, tras haber convocado a los Consejos Regionales o a los Consejos Generales para adoptarlos, éstos no lo hubieran hecho en un plazo de dieciocho meses.
Nota: Ley 2004-809 de 13 de agosto de 2004, art. 48: disposiciones transitorias relativas a los planes de eliminación de residuos domésticos.
Subsección 2 Almacenamiento subterráneo de residuos Artículos L541-16 a
L541-20
Artículo L541-16 Los residuos nucleares quedan excluidos de la aplicación de las disposiciones de la presente subsección.
Artículo L541-17 (Disposición nº 2005-1129 de 8 de septiembre de 2005 art. 3 Diario Oficial de 9 de septiembre de 2005)
I. - Los trabajos de prospección de las formaciones o cavidades geológicas susceptibles de utilización para el almacenamiento subterráneo de residuos finales sólo podrán ser realizados:
1° Por el propietario del suelo o con su consentimiento, previa declaración al Prefecto; 2° Si no hubiera consentimiento, mediante autorización administrativa, tras haber solicitado al propietario que
presentara sus alegaciones, en las condiciones establecidas por decreto adoptado en Conseil d'Etat. II. - Esta autorización de prospecciones conferirá a su titular el derecho a realizar trabajos de prospección dentro
del ámbito territorial definido en la resolución, exceptuando a cualquier otra persona, incluso al propietario del terreno. III. - Esta autorización será objeto de un procedimiento previo de consulta, a fin de que la población, los
representantes políticos electos y las asociaciones de protección del medio ambiente interesadas puedan presentar sus alegaciones.
NOTA: Disposición 2005-1129 de 8 de septiembre de 2005: Lo dispuesto en el artículo 3 de la Disposición 2005-1129 será aplicable en Mayotte a partir del 1 de enero de 2006.
Artículo L541-18 En el caso de almacenamiento subetarráneo de residuos, el propietario de la cavidad subterránea solamente podrá
ser el titular de la explotación o una persona de derecho público. Sin embargo, cuando tuviera que acondicionarse un lugar para el almacenamiento en un yacimiento minero
amparado por una concesión de duración ilimitada, la cavidad será propiedad del concesionario. En este caso, el titular de la concesión minera y el titular de la autorización de explotación acordarán las condiciones de puesta a disposición de la cavidad.
La autorización otorgada en aplicación del título I del presente libro establecerá todas las disposiciones necesarias para garantizar la seguridad y la conservación del subsuelo.
Determinará, asimismo, las medidas de vigilancia a largo plazo y las obras a realizar impuestas al titular de la explotación para que garantice la seguridad.
Artículo L541-19 En caso de explotación concomitante de un yacimiento minero y de una instalación de almacenamiento de
residuos, el titular de la autorización de explotación de la instalación de almacenamiento y el titular de los derechos mineros acordarán las condiciones de utilización de las eventuales partes comunes. Este acuerdo estará sujeto al control de la autoridad administrativa competente.
Artículo L541-20 Los artículos 71 a 76 del Código de Minería serán aplicables a los trabajos de prospección citados en el artículo
L.541-17 y a la explotación de instalaciones de almacenamiento subterráneo de residuos finales.
Subsección 3 Recogida de residuos domésticos y asimilados Artículo L541-21
Artículo L541-21 Las disposiciones relativas a la eliminación de residuos domésticos y asimilados por parte de las entidades
territoriales se encuentran enunciadas en el Código General de Entidades Territoriales (Parte segunda, libro II, título II, capítulo IV, secciones 1 y 3).
Subsección 4 Instalaciones destinadas a la eliminación de residuos Artículos L541-22 a
L541-30-1
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CÓDIGO DE MEDIO AMBIENTE Artículo L541-22
En lo que respecta a determinadas categorías de residuos citadas en el artículo L.541-7 y especificadas por decreto, la Administración establecerá las condiciones en las que se ejercerá la actividad de eliminación de conformidad con lo dispuesto en el artículo L.541-2, en todo el territorio nacional o en parte del mismo.
Estas mismas categorías de residuos solamente podrán ser tratadas en las instalaciones cuyo titular de explotación hubiera obtenido una autorización de la Administración. Estas categorías de residuos ya no podrán ser tratadas para su eliminación en las instalaciones existentes cuyo titular de explotación no hubiera obtenido dicha autorización en la fecha de entrada en vigor fijada por el decreto a que se refiere el párrafo anterior.
Artículo L541-23 Todo aquel que entregue o solicite la entrega de residuos pertenecientes a las categorías citadas en el artículo
L.541-22 a un tercero que no fuera el titular de la explotación de una instalación de eliminación autorizada, será solidariamente responsable de los daños causados por estos residuos.
Artículo L541-24 Los residuos industriales especiales, que por sus propiedades peligrosas figuraran en una lista establecida por
decreto adoptado en Conseil d'Etat, no podrán ser depositados en instalaciones de almacenamiento que reciban otras categorías de residuos.
A partir del 1 de julio de 2002, las instalaciones de eliminación de residuos por almacenamiento sólo estarán autorizadas para recibir residuos finales.
Artículo L541-25 Las instalaciones de eliminación de residuos estarán sujetas, cualquiera que fuera el titular de la explotación, a las
disposiciones del título I del presente libro. El estudio de impacto ambiental de una instalación de almacenamiento de residuos, elaborado en aplicación del título I del presente libro, indicará las condiciones de restauración del lugar del almacenamiento y las técnicas previsibles destinadas a la eventual recuperación de los residuos, en caso de que ninguna otra técnica pudiera ser aplicada. Antes de conceder la autorización de explotación, este estudio será sometido al dictamen de la Comisión Local de Información y Vigilancia interesada, si existiera, y al del Consejo Municipal del municipio donde estuviera ubicada la instalación.
Artículo L541-26 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002)
Cuando la autoridad administrativa compruebe que ya no se cumple la obligación de constitución de las garantías financieras exigidas en aplicación del artículo L.516-1, dirigirá un requerimiento al titular de la explotación instándole a que las vuelva a constituir. Transcurrido un mes desde la recepción del requerimiento sin que se hubiera dado cumplimiento al mismo, el Ministro de Medio Ambiente podrá imponer una multa administrativa. El importe de la multa será igual a tres veces el valor de la diferencia entre la cuantía de las garantías exigidas y la de las garantías realmente constituidas, hasta el límite de 30.489.803 euros. El Ministro no podrá imponer una multa cuando hubiera transcurrido más de un año desde la fecha del requerimiento.
La recaudación será realizada en beneficio del Tesoro Público en las mismas condiciones que las establecidas en materia de créditos que no sean relativos al impuesto y al patrimonio. El importe de la multa será asignado a la Agencia de Medio Ambiente y de Control de la Energía para operaciones de reacondicionamiento y vigilancia de centros de almacenamiento de residuos finales.
Un decreto adoptado en Conseil d'Etat precisará las garantías procesales destinadas a garantizar los derechos de la defensa durante el procedimiento sancionador.
Las instalaciones que ya existieran deberán ajustarse a las disposiciones del presente artículo antes de la fecha límite de 14 de junio de 1999.
El decreto arriba mencionado determinará las condiciones en las que el abono de una suma a la Agencia de Medio Ambiente y de Control de la Energía pueda tener valor de garantía, principalmente para las instalaciones cuya explotación hubiera finalizado y aquéllas cuyo final de período de explotación se produjera en el transcurso del plazo previsto en el párrafo anterior.
Artículo L541-27 La solicitud de autorización de una instalación de almacenamiento de residuos será presentada por el propietario
del terreno o con el acuerdo expreso de éste. El documento en el que conste dicho acuerdo tendrá que ser presentado junto con el expediente de solicitud e incluir los elementos del estudio de impacto ambiental relativos al estado del suelo y del subsuelo. El propietario, al igual que el solicitante, será el destinatario de todas las decisiones administrativas relativas a la instalación.
Artículo L541-28 En caso de transmisión a título oneroso de una instalación de almacenamiento de residuos, el vendedor o el
cedente estará obligado a informar al Prefecto y al Alcalde. En su defecto, podrá ser considerado como poseedor de los residuos que estuvieran almacenados, en el sentido del artículo L.541-2, y el poseedor de la instalación, en el sentido del artículo L.511-1.
Artículo L541-29 Con el fin de prevenir los riesgos y daños mencionados en el párrafo primero del artículo L.541-2, el municipio
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CÓDIGO DE MEDIO AMBIENTE donde estuviera ubicado el bien podrá ejercer el derecho de tanteo y retracto, en las condiciones establecidas en los capítulos I y III del título I del libro II del Código de Urbanismo, sobre los bienes inmuebles de las instalaciones de almacenamiento cuya explotación hubiera finalizado. El precio de adquisición será fijado teniendo en cuenta, en su caso, el coste de la vigilancia y de las obras que debieran realizarse para prevenir los daños.
La transmisión voluntaria de bienes inmuebles de una instalación de almacenamiento de residuos cuya explotación hubiera finalizado, estará supeditada, bajo pena de nulidad, a la declaración contemplada en el artículo L.213-2 del Código de Urbanismo.
Artículo L541-30 Si un poseedor de residuos no consiguiera en el territorio nacional, debido a la negativa de los titulares de la
explotación de instalaciones autorizadas a tales efectos, que se eliminaran sus residuos en una instalación autorizada, el Ministro de Medio Ambiente podrá imponer a uno o varios explotadores de una instalación autorizada a dichos efectos que procedan a la eliminación de dichos residuos, sin perjuicio del cumplimiento de las condiciones de explotación prescritas. La decisión mencionará la naturaleza y la cantidad de residuos a tratar y el período de duración de la prestación impuesta. Los gastos de eliminación, valorados en base a los costes generalmente aplicables a las operaciones análogas, serán por cuenta del poseedor.
Artículo L541-30-1 (Introducido por la Ley nº 2005-1319 de 26 de octubre de 2005 art. 5 Diario Oficial de 27 de octubre de 2005)
I. - La explotación de una instalación de almacenamiento de residuos inertes estará sujeta una autorización administrativa concedida con arreglo a las condiciones establecida por decreto adoptado en Conseil d'Etat.
II. - El presente artículo no se aplicará: 1° A las instalaciones de almacenamiento de residuos inertes que ya estuvieran acogidas a un régimen de
autorización de explotación; 2° A las instalaciones en las que los residuos inertes estuvieran almacenados por un periodo inferior a tres años
antes de ser preparados y enviados a un lugar diferente con fines de valorización, o almacenados por un periodo inferior a un año antes de ser enviados a un lugar de almacenamiento definitivo;
3° A la utilización de residuos inertes para la realización de obras de mejora, terraplenado, rehabilitación o para la construcción.
NOTA: Ley n° 2005-1319 de 26 de octubre de 2005, artículo 5II: "Las instalaciones de almacenamiento de residuos inertes que estuvieran en funcionamiento en la fecha de entrada en vigor de la presente Ley, estarán sujetas a lo dispuesto en el punto I, en las condiciones establecidas por decreto adoptado en Conseil d'Etat."
Subsección 5 Recuperación de residuos Artículos L541-31 a
L541-39
Artículo L541-31 Por decreto adoptado en Conseil d'Etat se podrán regular los modos de utilización de determinados materiales,
elementos o formas de energía a fin de facilitar su recuperación o la de los materiales y elementos que se les incorporan en determinadas fabricaciones.
La regulación podrá consistir, en particular, en la prohibición de determinados tratamientos, mezclas o incorporaciones de otros materiales o en la obligación de ajustarse a determinados procesos de fabricación.
Artículo L541-32 Sin perjuicio de lo establecido en los Convenios Internacionales y de las disposiciones relativas a la represión del
fraude, el Gobierno podrá fijar la proporción mínima de materiales o elementos recuperados con la que se debiera fabricar un producto o una categoría de productos, a fin de contribuir a la protección del medio ambiente o hacer frente a una situación de escasez.
Los productores e importadores interesados podrán concluir un contrato cuyo objeto sea garantizar el cumplimiento global de dicha proporción, la cual se valorará en función de la cantidad total de dicho productos, o de dicha categoría de productos, que se fabricara en el territorio nacional o se importara.
La utilización de una proporción mínima de materiales o elementos recuperados podrá ser impuesta por decreto adoptado en Conseil d'Etat a los fabricantes y, en su caso, a los importadores de los productos citados que no hubieran suscrito dicho contrato.
Artículo L541-33 En lo que respecta a las categorías de productos que se hubieran especificado por decreto adoptado en Conseil
d'Etat, se tendrá por no escrita cualquier estipulación susceptible de crear una discriminación en razón de la presencia de materiales o elementos de recuperación en los productos que cumplieran lo dispuesto en los reglamentos y normas en vigor.
Artículo L541-34 Cuando la ausencia de materiales recuperados o el bajo contenido de materiales de esta clase no fuera susceptible
de modificar las cualidades sustanciales de un producto, se prohibirá cualquier publicidad basada en esta característica. Esta publicidad será perseguida y castigada en las condiciones establecidas en los artículos L.121-2 a L.121-7 del Código de Consumo.
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CÓDIGO DE MEDIO AMBIENTE Artículo L541-35
Respecto a las categorías de materiales determinadas por decreto adoptado en Conseil d'Etat, la Administración establecerá las condiciones para el ejercicio de la actividad de recuperación en todo o parte del territorio nacional.
Las citadas categorías de materiales no podrán ser recuperadas en condiciones que no fueran las establecidas en el párrafo anterior, cuando hubiera transcurrido un año a partir de la publicación del decreto adoptado en aplicación de dicho párrafo.
Artículo L541-36 Por medio de planes aprobados por decreto adoptado en Conseil d'Etat, previa consulta pública, se podrán definir
las condiciones en las que se debiera recuperar los materiales, elementos y, eventualmente, formas de energía reutilizables, dentro de los límites territoriales que dichos planes establecieran. En las zonas en que se aplicara uno de estos planes, las condiciones citadas en el artículo L.541-35 serán establecidas tomando en consideración las disposiciones del plan y, especialmente, los objetivos que el mismo hubiera establecido para que las instalaciones públicas y privadas puedan lograr un rendimiento óptimo.
Artículo L541-37 Si mediante una evaluación económica global se demostrara su utilidad, los establecimientos industriales
responsables de vertidos térmicos al medio natural, con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat y previo informe de los Ministros interesados, deberán permitir que terceras personas utilicen una fracción de su producción de calor para usos domésticos colectivos o industriales con el objeto de reducir el volumen de dichos vertidos.
Artículo L541-38 Los aceites minerales y sintéticos que, una vez usados, ya no fueran aptos para ser aprovechados como tales para
el empleo al que estaban destinados cuando eran nuevos, y cuyo vertido al medio natural estuviera prohibido en virtud de lo dispuesto en el Decreto nº 77-254 de 8 de marzo de 1977, sólo podrán ser aprovechados, siempre que su calidad lo permitiera, para la regeneración y como combustible de uso industriaL.Esta última utilización sólo podrá efectuarse en establecimientos autorizados y siempre que las necesidades de las industrias de regeneración ya hubieran sido satisfechas de manera preferente.
Un decreto determinará las condiciones de aplicación del presente artículo.
Artículo L541-39 (Ley nº 2005-781 de 13 de julio de 2005 art. 32 Diario Oficial de 14 de julio de 2005)
Las sociedades de financiación del ahorro energético, citadas en el artículo 30 de la Ley nº 80-531 de 15 de julio de 1980, relativa al ahorro energético y el aprovechamiento del calor, estarán autorizadas a financiar, por medio de leasing inmobiliario y mobiliario, de crédito o de arrendamiento, las construcciones y equipamientos destinados a la recuperación, el transporte, el tratamiento, el reciclado y la valorización de los residuos y efluentes de toda índole, cualquiera que fuera el usuario de estos equipamientos. Lo dispuesto en el párrafo II del mismo artículo 30 no será de aplicación a las obras financiadas en las condiciones previstas en el presente artículo.
Sección IV Disposiciones especiales aplicables a los movimientos transfronterizos de
residuos Artículos L541-40 a L541-42
Artículo L541-40 A fin de prevenir los daños mencionados en el párrafo primero del artículo L.541-2, la importación, exportación y
almacenamiento provisional de determinadas categorías de residuos podrán prohibirse, regularse o supeditarse al acuerdo previo de los Estados interesados.
Antes de iniciar cualquier operación de importación, exportación o almacenamiento provisional de residuos, el poseedor de los residuos informará a las autoridades competentes de los Estados interesados.
Se prohibirá la importación, exportación y almacenamiento provisional cuando el poseedor no pudiera probar la existencia de un acuerdo que le obligara respecto del destinatario de los residuos, o que no poseyera la capacidad y competencias para garantizar la eliminación de dichos residuos en condiciones que no representaran un peligro para la salud humana y el medio ambiente.
Artículo L541-41 Si se hubieran introducido residuos en el territorio nacional incumpliendo las normas contempladas en el artículo
L.541-40, la autoridad administrativa competente podrá dirigir un requerimiento a su poseedor instándole a que los devuelva al país de origen. En caso de incumplimiento de dicho requerimiento, dicha autoridad podrá adoptar las disposiciones necesarias para llevar a efecto la devolución mencionada y los gastos correspondientes correrán a cargo de las personas que hubieran contribuido a la introducción o al almacenamiento de estos residuos, en las condiciones mencionadas en el párrafo segundo del artículo L.541-3.
Artículo L541-42 Si se hubieran exportado residuos incumpliendo las normas contempladas en el artículo L.541-40, la autoridad
administrativa competente podrá dirigir un requerimiento al productor o a las personas que hubieran contribuido a la exportación instándoles a que procedan a su reexpedición al territorio nacionaL.En caso de incumplimiento de dicho requerimiento, dicha autoridad podrá adoptar las disposiciones necesarias para llevar a efecto la reexpedición
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CÓDIGO DE MEDIO AMBIENTE mencionada. Los gastos correspondientes se cargarán al productor o a las personas que hubieran contribuido a la exportación de estos residuos y se cobrarán en las condiciones mencionadas en el párrafo segundo del artículo L.541-3.
Sección V Disposiciones financieras Artículo L541-43
Artículo L541-43 Se podrá constituir una agrupación de interés público, en las condiciones previstas en el artículo 21 de la Ley nº
82-610 de 15 de julio de 1982, de orientación y programación para la investigación y el desarrollo tecnológico de Francia, para facilitar la instalación y la explotación de cualquier nuevo centro colectivo de tratamiento de residuos industriales especiales o de cualquier nueva instalación de almacenamiento de residuos finales.
A estos efectos, dicha agrupación de interés público podrá llevar a cabo acciones de acompañamiento que incluyan, en particular, la realización de acondicionamientos paisajísticos, acciones de formación y de información al público y podrá administrar equipamientos de interés general, en beneficio de los vecinos de las instalaciones, de los municipios donde estuvieran ubicadas las instalaciones y de los municipios limítrofes.
Será obligatoria la creación de una agrupación de interés público, tal como se define en el presente artículo, en el caso de un almacenamiento subterráneo de residuos finales en capas geológicas profundas.
Además del Estado y del titular de la autorización concedida en virtud de lo dispuesto en el título I del presente libro, podrán adherirse de pleno derecho a esta agrupación la región y el departamento donde se encontrara ubicado el nuevo centro colectivo, los municipios que acogieran las instalaciones y los municipios limítrofes, así como cualquier organismo de cooperación intermunicipal cuyo objetivo fuera favorecer el desarrollo económico de la zona afectada.
Sección VI Disposiciones penales Artículos L541-44 a
L541-48
Subsección 1 Comprobación de las infracciones Artículos L541-44 a
L541-45
Artículo L541-44 I. - Estarán cualificados para proceder a la investigación y a la comprobación de las infracciones a lo dispuesto en
el presente capítulo, y en los reglamentos dictados para su aplicación, además de los funcionarios y agentes de la policía judicial mencionados en el artículo 20 del Código de Proceso Penal:
1° Los agentes de la policía judicial citados en el artículo 21 del Código de Proceso Penal; 2° Los funcionarios de la Policía Nacional y los agentes de la Policía Municipal, dentro de los límites impuestos por
las disposiciones relativas a sus competencias; 3° Los agentes habilitados en materia de represión del fraude; 4° Los funcionarios y agentes del servicio de puentes y caminos, del servicio de ingeniería agrónoma, de aguas y
montes, de la Oficina Nacional Forestal, del servicios de minas y de los servicios exteriores de la Marina Mercante, que hubieran prestado juramento o hubieran sido nombrados a estos efectos;
5° Los agentes de los servicios de Salud especialmente nombrados en las condiciones establecidas en el artículo L.1312-1 del Código de Salud Pública;
6° Los inspectores de las instalaciones clasificadas; 7° Los investigadores, ingenieros y técnicos jurados del Instituto Francés de Investigación para la Explotación del
Mar; 8° Los agentes de aduanas. II. - Los hechos recogidos en los atestados levantados en aplicación del presente artículo se presumirán ciertos,
salvo prueba en contrario.
Artículo L541-45 Los agentes encargados de levantar los atestados tendrán libre acceso a las instalaciones de eliminación o de
recuperación, a los lugares de producción, venta, expedición o almacenamiento, a sus anexos, así como a los depósitos de residuos, materiales o productos donde podrán tomar las muestras con fines de identificación. Esta disposición no será de aplicación a los inmuebles destinados a vivienda.
Los agentes encargados de levantar los atestados ejercerán igualmente sus funciones durante el transporte de los productos, residuos o materiales. Para el cumplimiento de su misión, podrán requerir la apertura de cualquier embalaje o envase y proceder a la inspección de cualquier carga, en presencia del expedidor, del destinatario, del transportista o porteador.
Subsección 2 Sanciones Artículos L541-46 a
L541-48
Artículo L541-46 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en
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CÓDIGO DE MEDIO AMBIENTE vigor el 1 de enero de 2002) (Disposición nº 2004-691 de 12 de julio de 2004 art. 3 IV Diario Oficial de 14 de julio de 2004) (Disposición nº 2005-1129 de 8 de septiembre de 2005 art. 2 IV Diario Oficial de 9 de septiembre de 2005) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 5 I Diario Oficial de 27 de octubre de 2005)
I. - Será castigado con la pena de dos años de prisión y una multa de 75.000 euros el que: 1° Se negare a proporcionar a la Administración la información contemplada en el artículo L. 541-9 o suministrare
información inexacta; 2° Incumpliere lo dispuesto en el artículo L. 541-10; 3° Se negare a proporcionar a la Administración la información contemplada en el artículo L. 541-7 o suministrare
información inexacta, o intencionadamente se colocare en la situación de imposibilidad material de proporcionar dicha información;
4° Abandonare, depositare o hiciere depositar, en condiciones que infringieran lo dispuesto en el presente capítulo, residuos pertenecientes a las categorías citadas en el artículo L. 541-7 y enumeradas en el reglamento dictado para su ejecución;
5° Realizare el transporte, la intermediación o la comercialización de residuos pertenecientes a las categorías citadas en el artículo L. 541-7 sin cumplir lo dispuesto en el artículo L. 541-8 y en los reglamentos dictados para su ejecución;
6° Entregare o solicitare la entrega de residuos a otra persona que no fuera el titular de la explotación de una instalación autorizada, infringiendo lo dispuesto en el artículo L. 541-22;
7° Eliminare residuos o materiales sin ser titular de la autorización prevista en el artículo L. 541-22; 8° Eliminare o recuperare residuos o materiales sin cumplir las disposiciones de los artículos L. 541-11, L. 541-22,
L. 541-24, L. 541-35 y L. 541-36, relativas a las características, cantidades, condiciones técnicas y financieras a las que está sujeta la utilización de residuos o materiales, y a los procedimientos de tratamiento aplicados;
9° Incumpliere lo dispuesto en los artículos L. 541-30 y L. 541-31; 10° Obstaculizare el cumplimiento de los controles o el ejercicio de las funciones de los agentes mencionados en el
artículo L. 541-44; 11° Exportare o solicitare la exportación, importare o solicitare la importación y permitiere el tránsito de los residuos
citados en el párrafo primero del artículo L. 541-40, sin cumplir con las disposiciones adoptadas en virtud de este artículo o de los reglamentos dictados para su ejecución.
12° Incumpliere las obligaciones de información previstas en el artículo L. 325-3 del Código de los Puertos Marítimos
II. - En caso de condena por las infracciones citadas en los apartados 4º, 6º y 8º del punto I, el Tribunal podrá ordenar, bajo pena de sanción pecuniaria, la restauración del lugar perjudicado por los residuos que no hubieran sido tratados en las condiciones impuestas por la Ley.
III. - En caso de condena por las infracciones citadas en los apartados 7º y 8º del punto I, el Tribunal podrá ordenar, además, el cierre temporal o definitivo de la instalación y prohibir al titular de su explotación el ejercicio de la actividad de eliminación o de recuperación de residuos.
IV. - En caso de condena por las infracciones citadas en los apartados 6º, 7º, 8º y 11º del punto I y que hubieran sido cometidas utilizando un vehículo, el Tribunal podrá ordenar, además, la suspensión del permiso de conducir por un período que no podrá exceder de cinco años.
V. - El Tribunal podrá ordenar la publicación o la difusión íntegra o parcial de la resolución dictada en las condiciones previstas en el artículo 131-35 del Código Penal.
Artículo L541-47 I. - Las personas jurídicas podrán ser declaradas penalmente responsables en las condiciones previstas en el
artículo 121-2 del Código Penal de las infracciones previstas en el artículo L.541-46. II. - Las penas a las que se exponen las personas jurídicas son: 1° La multa, en las condiciones previstas en el artículo 131-38 del Código Penal; 2° Las penas mencionadas en los apartados 2°, 3°, 4°, 5°, 6°, 8° y 9° del artículo 131-39 del mismo Código. III. - La inhabilitación mencionada en el apartado 2º del artículo 131-39 del Código Penal se refiere a la actividad en
cuyo ejercicio o con ocasión de cuyo ejercicio se hubiera cometido la infracción.
Artículo L541-48 El artículo L.541-46 será de aplicación a los encargados en cualquier concepto de la dirección, gestión o
administración de una empresa o establecimiento, que permitieran a sabiendas que las personas que se encontraran bajo su autoridad o control no observaran las disposiciones mencionadas en dicho artículo.
Sección VII Disposiciones diversas Artículos L541-49 a
L541-50
Artículo L541-49 El Gobierno presentará cada año al Parlamento un informe sobre la aplicación del presente capítulo. Este informe tratará especialmente de las intervenciones administrativas en materia de traslados transfronterizos
de residuos. Dicho informe será hecho público.
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CÓDIGO DE MEDIO AMBIENTE Artículo L541-50
Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente capítulo.
Capítulo II Disposiciones especiales aplicables a los residuos radiactivos Artículos L542-1 a
L542-14
Artículo L542-1 La gestión de los residuos radiactivos de alta actividad y de residuos de vida larga deberá llevarse a cabo
cumpliendo con todos los requisitos para la protección de la naturaleza, del medio ambiente y de la salud, y tendrá en cuenta los derechos de las generaciones futuras.
Artículo L542-2 El almacenamiento en Francia de residuos radiactivos importados, aun cuando su reprocesamiento hubiera sido
realizado en el territorio nacional, estará prohibido más allá de los plazos técnicos impuestos por el reprocesamiento.
Artículo L542-3 I. - El Gobierno remitirá anualmente al Parlamento un informe que analice el estado de avance de las
investigaciones sobre la gestión de los residuos radiactivos de alta actividad y vida larga, así como de los trabajos que se realicen simultáneamente para:
1° Realizar investigaciones sobre las soluciones que permitan la separación y la transmutación de los elementos radiactivos de vida larga presentes en estos residuos;
2° Estudiar las posibilidades de almacenamiento reversible o irreversible en las formaciones geológicas, especialmente gracias a la creación de laboratorios subterráneos;
3° Estudiar los procedimientos de acondicionamiento y almacenamiento superficial de larga duración para estos residuos.
II. - Este informe dará cuenta igualmente del estado de las investigaciones y de las realizaciones llevadas a cabo en el extranjero.
III. - Antes del 30 de diciembre de 2006, el Gobierno remitirá al Parlamento un informe global de evaluación de estas investigaciones acompañado de un proyecto de ley autorizando, en su caso, la creación de un centro de almacenamiento de residuos radiactivos de alta actividad y vida larga y estableciendo servidumbres y obligaciones relacionadas con ese centro.
IV. - El Parlamento someterá estos informes a la Oficina Parlamentaria de Evaluación de las Opciones Científicas y Tecnológicas.
V. - Dichos informes serán hechos públicos. VI. - Dichos informes serán elaborados por una Comisión Nacional de Evaluación, formada por: 1° Seis personalidades cualificadas, dos de las cuales como mínimo deberán ser expertos internacionales,
nombradas a partes iguales por la Asamblea Nacional y el Senado, a propuesta de la Oficina Parlamentaria de Evaluación de las Opciones Científicas y Tecnológicas;
2° Dos personalidades cualificadas nombradas por el Gobierno, a propuesta del Consejo Superior Nuclear de Seguridad e Información;
3° Cuatro científicos expertos, nombrados por el Gobierno, a propuesta de la Academia de Ciencias.
Artículo L542-4 Las condiciones en las que se construirán y explotarán los laboratorios subterráneos destinados al estudio de las
formaciones geológicas profundas donde se podrían almacenar o depositar los residuos radiactivos de alta actividad y vida larga serán determinadas por los artículos L.542-5 a L.542-11.
Artículo L542-5 Cualquier proyecto de instalación de un laboratorio subterráneo exigirá, antes del inicio de cualquier trabajo de
investigación preliminar, un acuerdo entre los cargos electos y la población de los lugares afectados, en las condiciones establecidas por decreto.
Artículo L542-6 Los trabajos de investigación previos a la instalación de los laboratorios serán ejecutados en las condiciones
previstas por la Ley de 29 de diciembre de 1892, relativa a los daños causados a la propiedad privada por la ejecución de obras públicas.
Artículo L542-7 Sin perjuicio de la aplicación de lo dispuesto en el título I del presente libro, la instalación y explotación de un
laboratorio subterráneo estarán sujetas a una autorización concedida por decreto adoptado en Conseil d'Etat, tras el estudio de impacto ambiental, el dictamen de los Consejos municipales, de los Consejos generales y de los Consejos regionales interesados y previa consulta pública, organizada con arreglo a los procedimientos contemplados en los artículos L.123-1 a L.123-16.
Esta autorización irá acompañada de un pliego de condiciones. El solicitante de dicha autorización deberá poseer las capacidades técnicas y financieras que fueran necesarias
para llevar a cabo estas actuaciones.
Artículo L542-8
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CÓDIGO DE MEDIO AMBIENTE La autorización conferirá a su titular, dentro de un ámbito territorial que estará definido en el decreto de
constitución, el derecho exclusivo a realizar obras en la superficie y en el subsuelo y el derecho de libre disposición de los materiales extraídos en estas obras.
Los propietarios de terrenos situados dentro de este ámbito territorial serán indemnizados por acuerdo amistoso con el titular de la autorización o en las mismas condiciones que las establecidas en materia de expropiación.
Podrá procederse, en beneficio del titular de la autorización, a la expropiación por causa de utilidad pública de la totalidad o parte de estos terrenos.
Artículo L542-9 El decreto por el que se conceda la autorización establecerá, además, fuera del ámbito territorial mencionado en el
artículo anterior, un perímetro de protección dentro del cual la autoridad administrativa podrá prohibir o regular las obras o las actividades que fueran susceptibles de comprometer la instalación o el funcionamiento del laboratorio a nivel técnico.
Artículo L542-10 En estos laboratorios subterráneos se podrán utilizar temporalmente fuentes radiactivas para fines de
experimentación. Se prohibirá el depósito o el almacenamiento de residuos radiactivos en estos laboratorios.
Artículo L542-11 Podrá constituirse una agrupación de interés público, en las condiciones previstas por el artículo 21 de la Ley nº
82-610 de 15 de julio de 1982 de orientación y programación para la investigación y el desarrollo tecnológico de Francia, para llevar a cabo acciones de acompañamiento y gestionar los equipamientos cuyo carácter favorezca y facilite la instalación y explotación de cada laboratorio.
Además del Estado y del titular de la autorización contemplada en el artículo L.542-7, podrán adherirse de pleno derecho a esta agrupación la región y el departamento donde se encuentre situado el pozo principal de acceso al laboratorio, los municipios cuyo término estuviera en parte situado a menos de diez kilómetros de ese pozo, así como cualquier organismo de cooperación intermunicipal cuyo objetivo fuera favorecer el desarrollo económico de la zona correspondiente.
Artículo L542-12 La Agencia Nacional de Gestión de Residuos Radiactivos, organismo público de carácter industrial y comercial,
estará encargada de la gestión a largo plazo de los residuos radiactivos, y en especial: 1° De participar en la definición y contribuir a los programas de investigación y desarrollo correspondientes a la
gestión a largo plazo de los residuos radiactivos en cooperación, principalmente, con el Comisariado de la Energía Atómica;
2° De realizar la gestión de los centros de almacenamiento a largo plazo, directamente o por medio de terceros que actúen por su cuenta;
3° De diseñar, implantar y realizar los nuevos centros de almacenamiento teniendo en cuenta las perspectivas a largo plazo de producción y de gestión de los residuos, y de realizar todos los estudios que fueran necesarios a estos efectos, principalmente dirigidos a la creación y explotación de laboratorios subterráneos destinados al estudio de las formaciones geológicas profundas;
4° De definir, de conformidad con las normas de seguridad, especificaciones de acondicionamiento y almacenamiento de los residuos radiactivos;
5° De elaborar un registro en el que figuren el estado y localización de todos los residuos radiactivos situados dentro del territorio nacional.
Artículo L542-13 Se creará un Comité local de información y seguimiento en cada emplazamiento de un laboratorio subterráneo. Este Comité estará formado, principalmente, por representantes del Estado, dos diputados y dos senadores
nombrados por su respectiva asamblea, representantes de las entidades territoriales consultadas con motivo de la consulta pública, miembros de las asociaciones de protección del medio ambiente y de los sindicatos agrícolas, representantes de las organizaciones profesionales y representantes del personal del laboratorio, así como también por el titular de la autorización.
Al menos la mitad de este Comité lo integrarán representantes de las entidades territoriales consultadas con motivo de la consulta pública. Estará presidido por el Prefecto del departamento en cuyo territorio esté situado el laboratorio.
El Comité se reunirá como mínimo dos veces al año. Será informado de los objetivos del programa, de la naturaleza de los trabajos y de los resultados obtenidos. Podrá recurrir a la Comisión Nacional de Evaluación citada en el artículo L.542-3.
El Comité será consultado sobre aquellas cuestiones relativas al funcionamiento del laboratorio que tuvieran incidencia sobre el medio ambiente y las zonas vecinas. Podrá pedir auditorías o contraperitajes de laboratorios autorizados.
Los gastos de creación y funcionamiento del Comité local de información y seguimiento correrán a cargo de la agrupación mencionada en el artículo L.542-11.
Artículo L542-14 Un decreto adoptado en Conseil d'Etat determinará, en tanto sea necesario, las condiciones de aplicación del
presente capítulo.
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CÓDIGO DE MEDIO AMBIENTE Título V Disposiciones especiales aplicables a determinadas construcciones o
instalaciones Artículos L551-1 a L553-4
Capítulo I Estudios de peligrosidad Artículos L551-1 a
L551-2
Artículo L551-1 (Ley nº 2004-811 de 13 de agosto de 2004 art. 102 II Diario Oficial de 17 de agosto de 2004)
Los proyectos de creación de una instalación o de una construcción que requiriesen un plan de intervención especial según lo dispuesto en el artículo 15 de la Ley 2004-811 de 13 de agosto de 2004, relativa a la modernización de la protección civil, y que estuvieran sujetos a autorización o aprobación, tendrán que incluir un estudio de peligrosidad.
Por decreto adoptado en Conseil d'Etat se establecerán, en tanto sea necesario, las condiciones de aplicación del presente artículo.
Artículo L551-2 (Introducido por la Ley nº 2003-699 de 30 de julio de 2003 art. 6 Diario Oficial de 31 de julio de 2003)
Cuando debido al estacionamiento, a la carga o a la descarga de vehículos o de artefactos de transporte que contuvieran materias peligrosas, la explotación de una infraestructura vial, ferroviaria, portuaria o de navegación interior, o la explotación de una instalación de carácter multimodal pudiera plantear graves peligros para la seguridad de la población y para la salubridad y salud públicas, de manera directa o mediante la contaminación del medio natural, el promotor del proyecto facilitará a la autoridad administrativa un estudio de peligrosidad. El titular de la explotación actualizará este estudio al menos cada cinco años. Cuando se tratara de una construcción o de una instalación objeto de informe sobre la seguridad o de valoración de riesgos en virtud de lo dispuesto en los artículos L.118-1 y siguientes del Código de Seguridad Vial, 13-1 y 13-2 de la Ley nº 82-1153 de 30 de diciembre de 1982 de orientación de los transportes interiores, 30 del Código del Dominio Público Fluvial y de la Navegación Interior o L.155-1 del Código de los Puertos Marítimos, el estudio de peligrosidad será incorporado a dicho informe o valoración.
Respecto a las construcciones e instalaciones que estuvieran en funcionamiento en la fecha de publicación de la Ley nº 2003-699 de 30 de julio de 2003 relativa a la prevención de los riesgos tecnológicos y naturales y a la reparación de los daños, este estudio será entregado dentro del plazo máximo de tres años a partir de la entrada en vigor de dicha Ley.
Las condiciones de aplicación del presente artículo y, en particular, las categorías de construcciones que entraran en su ámbito de aplicación serán determinadas por decreto adoptado en Conseil d'Etat para cada modo de transporte.
Capítulo II Garantías financieras Artículo L552-1
Artículo L552-1 Para aquellas construcciones o instalaciones que presentaran riesgos cuyas consecuencias financieras fueran
manifiestamente desproporcionadas respecto al valor del capital inmovilizado, la autoridad encargada de conceder la autorización de explotación podrá condicionar su concesión a la constitución de garantías financieras. Por decreto adoptado en Conseil d'Etat se determinarán las categorías de infraestructuras afectadas, las reglas para la determinación de la cuantía de la garantía, la cual tendrá que ajustarse a las consecuencias previsibles en caso de que se produjera el riesgo, así como también los procedimientos para su ejecución.
Capítulo III Instalaciones eólicas Artículos L553-1 a
L553-4
Artículo L553-1 (Ley nº 2003-590 de 2 de julio de 2003 art. 98 I Diario Oficial de 3 de julio de 2003) (Derogado por la Disposición nº 2005-1527 de 8 de diciembre de 2005 art. 34 IV Diario Oficial de 9 de diciembre de 2005 con entrada en vigor el 1 de julio de 2007)
Tal como establece el párrafo primero del artículo L. 421-1-1 del Código de Urbanismo que se transcribe a continuación:
Art. L. 421-1-1 (párrafo primero): La construcción de una instalación generadora de electricidad a partir de la energía mecánica del viento con una altura igual o superior a 12 metros, estará supeditada a la obtención de una licencia de obra.
Artículo L553-2 (Ley nº 2003-590 de 2 de julio de 2003 art. 98 I Diario Oficial de 3 de julio de 2003) (Disposición nº 2004-489 de 3 de junio de 2004 art. 1 III Diario Oficial de 5 de junio de 2004) (Ley nº 2005-781 de 13 de julio de 2005 art. 37 IV Diario Oficial de 14 de julio de 2005)
I. La construcción de una o varias instalaciones generadoras de electricidad a partir de la energía mecánica del viento con una altura de mástil igual o superior a 50 metros, estará supeditada a la realización previa:
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CÓDIGO DE MEDIO AMBIENTE a) Del estudio de impacto definido en el capítulo II del título II del libro I del presente Código; b) De una consulta pública sujeta a lo dispuesto en el capítulo III del título II del libro I del presente Código. II. - Los proyectos de construcción que no estén supeditados a la realización previa de un estudio de impacto
ambiental tendrán que ser objeto de un informe ambiental.
Artículo L553-3 (Ley nº 2003-590 de 2 de julio de 2003 art. 98 I Diario Oficial de 3 de julio de 2003) (Ley nº 2005-781 de 13 de julio de 2005 art. 40 Diario Oficial de 14 de julio de 2005)
El titular de explotación de una instalación generadora de electricidad a partir de la energía mecánica del viento será responsable de su desmantelamiento, así como de la restauración del lugar una vez finalizada la actividad de explotación. Durante la misma, tendrá que constituir las garantías financiera necesarias. En el caso de las instalaciones situadas en el dominio público marítimo, dichas garantías financieras se constituirán al iniciarse la construcción. Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de constitución de las garantías financieras.
Artículo L553-4 (Ley nº 2003-590 de 2 de julio de 2003 art. 98 I Diario Oficial de 3 de julio de 2003) (Ley nº 2005-781 de 13 de julio de 2005 art. 43 Diario Oficial de 14 de julio de 2005)
I. - Con el fin de fomentar un desarrollo coordinado de la energía eólica, las regiones podrán poner en marcha un plan regional eólico, previa consulta con los departamentos y las entidades públicas de cooperación intermunicipal interesadas que cuenten con régimen fiscal propio. Este plan indicará los sectores geográficos más idóneos para la construcción de instalaciones generadoras de electricidad empleando la energía mecánica del viento. El plan tendrá en cuenta la evaluación, por zona geográfica, del potencial eólico establecido según lo dispuesto en el punto I del artículo 6 de la Ley n° 2000-108 de 10 de febrero de 2000, relativa a la modernización y el desarrollo del servicio público de electricidad.
II. - Los servicios del Estado podrán participar en la elaboración de este plan, a petición del Consejo Regional.
Título VI Prevención de riesgos naturales Artículos L561-1 a
L565-2
Capítulo I Medidas de protección para las poblaciones amenazadas por determinados riesgos
naturales mayores Artículos L561-1 a L561-5
Artículo L561-1 (Ley nº 2002-276 de 27 de febrero de 2002 art. 159 V Diario Oficial de 28 de febrero de 2002) (Ley nº 2003-699 de 30 de julio de 2003 art. 60 Diario Oficial de 31 de julio de 2003)
Sin perjuicio de lo dispuesto en el apartado 5º del artículo L.2212-2 y en el artículo L.2212-4 del Código General de Entidades Territoriales, cuando existiera un riesgo previsible de corrimientos o de hundimientos de tierras provocados por la existencia de una cavidad o galería subterránea, de avalanchas o de crecidas torrenciales que amenazaran gravemente a las personas, el Estado podrá declarar de utilidad pública la expropiación de oficio o a instancia de los municipios o sus agrupaciones, de los bienes expuestos a este riesgo, en las condiciones previstas por el Código de la Expropiación por Causa de Utilidad Pública, siempre y cuando los medios para la salvaguardia y protección de las poblaciones afectadas tuvieran un coste mayor que las indemnizaciones por expropiación.
Estas disposiciones no se aplicarán a las cavidades subterráneas de origen natural o humano derivadas de la explotación actual o anterior de una mina.
El procedimiento previsto por los artículos L.15-6 a L.15-8 del Código de la Expropiación por Causa de Utilidad Pública será de aplicación cuando la extrema gravedad de los acontecimientos requiriese la adopción inmediata de medidas de protección.
No obstante, para determinar la cuantía de las indemnizaciones correspondientes al valor de los bienes expropiados, no se considerará la existencia del riesgo. Las indemnizaciones percibidas en aplicación del párrafo cuarto del artículo L.125-2 del Código de Seguros serán deducidas de las indemnizaciones por expropiación cuando las obras de reparación derivadas del siniestro no se hubieran realizado y cuando el valor del bien hubiera sido estimado sin tener en cuenta los daños sufridos.
Artículo L561-2 Sin perjuicio de lo dispuesto en el artículo L.13-14 del Código de la Expropiación por Causa de Utilidad Pública, las
adquisiciones de bienes inmuebles podrán dar lugar a indemnizaciones parciales o incluso no conllevar indemnización alguna si se comprobara que en el momento de llevarlas a cabo se realizaron con la finalidad de obtener una indemnización superior al precio de compra.
Salvo prueba en contrario, se considerará que han sido realizadas con tal finalidad las adquisiciones que se hubieran realizado con posterioridad a la apertura de la consulta pública previa a la aprobación de un plan de prevención de riesgos naturales por el que se declarase la prohibición de construir en la zona afectada o, de no existir dicho plan, las adquisiciones que se hubieran realizado con posterioridad a la apertura de la consulta pública previa a la expropiación.
Artículo L561-3
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CÓDIGO DE MEDIO AMBIENTE (Ley nº 2002-276 de 27 de febrero de 2002 art. 159 VI Diario Oficial de 28 de febrero de 2002) (Ley nº 2002-1576 de 30 de diciembre de 2002 de finanzas rectificativa art. 75 I Diario Oficial de 31 de diciembre de 2002) (Ley nº 2003-699 de 30 de julio de 2003 art. 61 Diario Oficial de 31 de julio de 2003)
I. El Fondo de prevención de riesgos naturales estará encargado de financiar, dentro de los límites de sus recursos, las indemnizaciones concedidas en virtud de lo establecido en el artículo L.561-1, así como los gastos derivados de la restricción al acceso y eventual demolición de los bienes expuestos, a fin de impedir cualquier ocupación futura de los mismos. Financiará asimismo, dentro de los citados límites, los gastos de prevención relacionados con las evacuaciones temporales y el realojamiento de las personas expuestas a dichos riesgos.
Asimismo, por decisión previa del Estado y con arreglo a las modalidades y condiciones establecidas por decreto adoptado en Conseil d'Etat, podrá contribuir a la financiación de las medidas de prevención de bienes asegurados por la póliza mencionada en el párrafo primero del artículo L.125-1 del Código de Seguros. Las medidas preventivas susceptibles de financiación son:
1° La adquisición por medio de acuerdo amistoso por parte de un municipio, una agrupación de municipios o el Estado de un bien expuesto a un riesgo previsible de corrimientos o de hundimientos de tierras provocados por la existencia de una cavidad o galería subterránea, de avalanchas, de crecidas torrenciales o de progresión rápida, que amenazara gravemente a las personas, así como también las medidas necesarias para limitar el acceso a la zona afectada e impedir cualquier ocupación, siempre que el precio de la adquisición acordado amistosamente resultara menor que el coste correspondiente a las medidas de salvaguardia y protección de las poblaciones;
2° La adquisición por medio de acuerdo amistoso por parte de un municipio, una agrupación de municipios o el Estado, de bienes para uso de vivienda o de bienes utilizados en el marco de actividades profesionales de personas físicas o jurídicas que dieran empleo a menos de veinte personas y, especialmente de empresas industriales, comerciales, agrícolas o artesanales y de los terrenos donde se ubicaran, así como las medidas necesarias para limitar el acceso a la zona afectada e impedir cualquier ocupación de la misma, siempre que en los terrenos adquiridos se hubiera prohibido la construcción durante el plazo de tres años y los citados bienes hubieran perdido más de la mitad de su valor por el siniestro, habiendo recibido la correspondiente indemnización de conformidad con lo establecido en el artículo L.125-2 del Código de Seguros;
3° Las operaciones destinadas al reconocimiento de las cavidades y galerías subterráneas que hubieran sido consideradas peligrosas para las construcciones o las personas, así como las obras de tratamiento o de relleno de las cavidades y galerías subterráneas que presentaran riesgos de derrumbamiento y supusieran graves amenazas para las personas, cuando dichas obras fueran económicamente menos costosas que la expropiación contemplada en el artículo L.561-1;
4° Los estudios y trabajos de prevención de carácter obligatorio establecidos en el plan de prevención de riesgos naturales aprobado según lo previsto en el apartado 4º del punto II del artículo L.562-1, sobre bienes destinados para vivienda o sobre bienes utilizados para el ejercicio de actividades profesionales de personas físicas o jurídicas que dieran empleo a menos de veinte personas, especialmente las empresas industriales, comerciales, agrícolas o artesanales;
5° Las campañas de información, principalmente las que se llevaran a cabo según lo dispuesto en el párrafo segundo del artículo L.125-2 del presente Código, relativo a las garantías citadas en el artículo L.125-1 del Código de Seguros.
La financiación por el Fondo de las adquisiciones por acuerdo amistoso mencionadas en los apartados 1º y 2º, quedará condicionada a que el precio fijado para estas adquisiciones no supere el importe de las indemnizaciones calculadas de conformidad con lo dispuesto en el párrafo cuarto del artículo L.561-1. Si se tratara de una entidad pública distinta del Estado la que hubiera sido beneficiaria de una financiación según lo dispuesto en el apartado 2º y en los tres años siguientes no se hubiera prohibido la construcción en los terrenos adquiridos, estará obligada a reembolsar al Fondo la cuantía percibida.
El Fondo financiará las actuaciones de reconocimiento y los estudios y trabajos mencionados en los apartados 3º y 4º previa deducción del importe de las indemnizaciones percibidas o, en su caso, será de aplicación lo dispuesto en el artículo L.125-2 del Código de Seguros, relativo a la realización de estudios o trabajos de reparación susceptibles de contribuir a estas actuaciones de reconocimiento o a estos estudios y trabajos de prevención.
II. Este Fondo se nutrirá de una contribución proveniente del resultado de la recaudación de las primas o cuotas adicionales relativas a la garantía contra el riesgo de catástrofes naturales, previstas en el artículo L.125-2 del Código de Seguros. Dicha contribución será abonada por las empresas de seguros o su representante fiscal contemplado en el artículo 1004 bis del Código General de Impuestos.
El porcentaje de esta contribución será fijado por la autoridad administrativa hasta el límite de un 4%. La contribución será recaudada con arreglo a las mismas normas, garantías y sanciones que el impuesto sobre las primas de seguros previsto en los artículos 991 y siguientes del Código General de Impuestos.
Además, el Fondo podrá recibir anticipos por parte del Estado. La gestión contable y financiera del Fondo correrá a cargo de la Caja Central de Reaseguros en una cuenta distinta
de aquéllas que recogen las demás operaciones practicadas por este establecimiento. Los gastos que deba asumir la Caja Central de Reaseguros para la realización de esta gestión serán imputados al Fondo.
Artículo L561-4 A partir de la publicación de la orden de apertura de la consulta pública previa a la expropiación realizada según lo
dispuesto en el artículo L.561-1 y durante un plazo máximo de cinco años, no podrá concederse ninguna licencia de
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CÓDIGO DE MEDIO AMBIENTE obra ni autorización administrativa alguna susceptible de aumentar el valor de los bienes expropiados hasta la conclusión del procedimiento de expropiación, si el Conseil d'Etat no hubiera emitido su dictamen dentro de dicho plazo.
La persona jurídica de derecho público a cuyo nombre se hubiera concedido una licencia de obra o una autorización administrativa contraviniendo lo dispuesto en el párrafo primero del presente artículo o infringiendo las disposiciones alegables de un plan de prevención de riesgos naturales, estará obligada a reembolsar al Fondo mencionado en el artículo L.561-3 el coste de la expropiación de aquellos bienes que hubieran sido objeto de dicha licencia o autorización.
Artículo L561-5 El Gobierno presentará al Parlamento, como anexo a la Ley de Finanzas del año, un informe sobre la gestión del
Fondo de prevención de riesgos naturales mayores. Un decreto adoptado en Conseil d'Etat precisará las condiciones de aplicación del presente capítulo.
Capítulo II Planes de prevención de riesgos naturales previsibles Artículos L562-1 a
L562-9
Artículo L562-1 (Ley nº 2003-699 de 30 de julio de 2003 art. 66 Diario Oficial de 31 de julio de 2003)
I. - El Estado elaborará y pondrá en aplicación planes de prevención de riesgos naturales previsibles tales como las inundaciones, los corrimientos de tierras, las avalanchas, los incendios forestales, los seísmos, las erupciones volcánicas, las tempestades o los ciclones.
II. - Estos planes tendrán por objeto, en tanto sea necesario: 1° Delimitar las zonas expuestas a los riesgos, denominadas "zonas de peligros", según la naturaleza e intensidad
de dichos riesgos; prohibir en dichas zonas cualquier clase de construcción, obra, acondicionamiento o explotación agrícola, forestal, artesanal, comercial e industrial o, en caso de que se hubieran autorizado dichas construcciones, obras, acondicionamientos o explotaciones agrícolas, forestales, artesanales, comerciales e industriales, prescribir las condiciones de realización, utilización y explotación;
2° Delimitar las zonas denominadas "zonas de precaución", que no estuvieran directamente expuestas a los riesgos pero en las que las construcciones, obras, acondicionamientos o explotaciones agrícolas, forestales, artesanales, comerciales e industriales pudieran agravar dichos riesgos o provocar otros nuevos, y prever medidas de prohibición o prescripciones como las contempladas en el apartado 1º;
3° Definir las medidas de prevención, protección y salvaguardia que deberán tomar las entidades públicas, en el ámbito de sus competencias, en las zonas mencionadas en los apartados 1º y 2º, así como las medidas que puedan corresponder a los particulares;
4° Definir, en las zonas mencionadas en los apartados 1º y 2º, las medidas que deberán adoptar los propietarios, titulares de explotaciones o usuarios con relación al acondicionamiento, utilización y explotación de las construcciones, obras y espacios cultivados o plantados en la fecha de aprobación del plan.
III. - La aplicación de las medidas contempladas en los apartados 3º y 4º del punto II podrá ser obligatoria, en función de la naturaleza e intensidad del riesgo, en el plazo de cinco años, pudiéndose reducir dicho plazo en caso de urgencia. Cuando no se aplicasen las mencionadas medidas dentro de este plazo, el Prefecto podrá ordenar su aplicación por cuenta del propietario, del titular de la explotación o del usuario, previo requerimiento dirigido al interesado.
IV. - Cuando las medidas de prevención para los terrenos forestales contempladas en los apartados 3º y 4º del punto II, establecieran normas de gestión y de explotación forestal o la realización de trabajos de prevención en los espacios forestales cuya ejecución fuera por cuenta de los propietarios y titulares de explotaciones forestales, públicos o privados, estas medidas deberán ser adoptadas de conformidad con lo dispuesto en el título II del libro III y en el libro IV del Código Forestal.
V. - Los trabajos de prevención requeridos en el apartado 4º del punto II para bienes construidos o acondicionados según lo dispuesto en el Código de Urbanismo antes de la aprobación del plan y que fueran por cuenta de los propietarios, de los titulares de la explotación o de los usuarios, sólo podrán consistir en acondicionamientos limitados.
Artículo L562-2 Cuando un proyecto de plan de prevención de riesgos naturales previsibles contuviera algunas de las disposiciones
mencionadas en los apartados 1º y 2º del punto II del artículo L.562-1 y cuando la urgencia lo requiriera, el Prefecto, previa consulta con los Alcaldes interesados, podrá declararlas inmediatamente oponibles a cualquier persona pública o privada mediante una decisión que hará pública.
Estas disposiciones dejarán de ser oponibles si no hubieran sido recogidas en el plan aprobado o, si dicho plan no hubiera sido aprobado en el plazo de tres años.
Artículo L562-3 (Ley nº 2003-699 de 30 de julio de 2003 art. 62, art. 38, art. 39 Diario Oficial de 31 de julio de 2003)
El Prefecto definirá los procedimientos de la concertación relativa a la elaboración del proyecto de plan de prevención de riesgos naturales previsibles.
Las entidades territoriales y las entidades públicas de cooperación intermunicipal interesadas participarán en la elaboración de este proyecto.
Tras la realización de la consulta pública llevada a cabo en las condiciones establecidas en los artículos L.123-1 y
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CÓDIGO DE MEDIO AMBIENTE siguientes, y previo dictamen de los Consejos Municipales de los municipios en cuyo territorio debiera aplicarse, el plan de prevención de riesgos naturales previsibles será aprobado por orden prefectoraL.Durante dicha consulta y previo dictamen de su Consejo Municipal, serán oídos los Alcaldes de los municipios en cuyos términos debiera aplicarse el plan.
Artículo L562-4 Una vez aprobado, el plan de prevención de riesgos naturales previsibles tendrá carácter de utilidad pública. Se
incorporará como anexo al plan de ocupación de suelos, de conformidad con lo dispuesto en el artículo L.126-1 del Código de Urbanismo.
El plan aprobado de prevención de riesgos naturales previsibles se publicará mediante edictos en el ayuntamiento y en la prensa local con el objeto de informar a las poblaciones interesadas.
Artículo L562-5 (Ley nº 2003-699 de 30 de julio de 2003 art. 63 Diario Oficial de 31 de julio de 2003) (Disposición nº 2005-1527 de 8 de diciembre de 2005 art. 34 I Diario Oficial de 9 de diciembre de 2005 con entrada en vigor el 1 de julio de 2007)
I. - El que construyere o acondicionare un terreno en una zona prohibida por un plan aprobado de prevención de riesgos naturales previsibles o no cumpliere las condiciones de realización, utilización y explotación prescritas por dicho plan, será castigado con las penas contempladas en el artículo L. 480-4 del Código de Urbanismo.
II. - Lo dispuesto en los artículos L. 460-1, L. 480-1, L. 480-2, L. 480-3 y L. 480-5 a L. 480-9, L. 480-12 y L. 480-14 del Código de Urbanismo será de aplicación igualmente a las infracciones mencionadas en el punto I, ateniéndose a las siguientes condiciones:
1° Las infracciones serán comprobadas, además, por los funcionarios y agentes jurados nombrados a estos efectos por la autoridad administrativa competente;
2° Para la aplicación del artículo L. 480-5 del Código de Urbanismo, el Tribunal, a la vista de las observaciones escritas o tras oír al Alcalde o al funcionario competente, e incluso en ausencia de dictamen de estos últimos, se pronunciará sobre la conformidad de los lugares o construcciones con el plan, o sobre su reposición al estado anterior;
3° Los representantes de la autoridad administrativa competente podrán hacer uso del derecho de inspección previsto en el artículo L. 461-1 del Código de Urbanismo.
4° El Prefecto podrá igualmente recurrir al Tribunal de Grande Instance según lo dispuesto en el artículo L. 480-14 del Código de Urbanismo.
Artículo L562-6 Los planes de exposición a los riesgos naturales previsibles aprobados de conformidad con el punto I del artículo 5
de la Ley nº 82-600 de 13 de julio de 1982 relativa a la indemnización de víctimas de catástrofes naturales, será considerados a estos efectos como planes de prevención de riesgos naturales previsibles. Tendrán igual consideración los planes de superficies sumergibles siguiendo lo dispuesto en los artículos 48 a 54 del Código del Dominio Público Fluvial y de la Navegación Interior, las zonas de riesgos establecidas en el artículo R. 111-3 del Código de Urbanismo, así como los planes de zonas expuestas a incendios forestales establecidos según lo dispuesto en el artículo 21 de la Ley nº 91-5 de 3 de enero de 1991, de modificación de diversas disposiciones en materia de agricultura y bosques. Su modificación o revisión estará sujeta a lo dispuesto en el presente capítulo.
Los planes o zonas citados en el párrafo anterior que estuvieran en curso de elaboración en fecha del 2 de febrero de 1995, serán considerados como proyectos de planes de prevención de riesgos naturales previsibles, sin que fuera necesario proceder a las consultas públicas o demás consultas que hubieran sido debidamente organizadas de conformidad con los procedimientos anteriores correspondientes a estos documentos.
Artículo L562-7 Un decreto adoptado en Conseil d'Etat precisará las condiciones de aplicación de los artículos L.562-1 a L.562-6.
Definirá, en particular, los elementos constitutivos y el procedimiento de elaboración y de revisión de los planes de prevención de riesgos naturales previsibles, así como también las condiciones en las que deban adoptarse las medidas contempladas en los apartados 3º y 4º del punto II del artículo L.562-1.
Artículo L562-8 En las partes sumergibles de los valles y en las demás zonas inundables, los planes de prevención de riesgos
naturales previsibles definirán, en caso de necesidad, las prohibiciones y prescripciones técnicas que se debieran cumplir a fin de garantizar la libre escorrentía de las aguas y la conservación, restauración y extensión de los terrenos de inundación.
Artículo L562-9 A fin de definir las medidas de prevención que debieran aplicarse en las zonas expuestas a incendios forestales, el
Prefecto elaborará un plan de prevención de riesgos naturales, en concertación con los Consejos regionales y Consejos generales interesados.
Capítulo III Otras medidas de prevención Artículos L563-1 a
L563-6
Artículo L563-1
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CÓDIGO DE MEDIO AMBIENTE (Ley nº 2003-699 de 30 de julio de 2003 art. 64 Diario Oficial de 31 de julio de 2003)
En las zonas particularmente expuestas a un riesgo sísmico o ciclónico, los equipamientos, edificios e instalaciones podrán estar sujetos a normas específicas de construcción antisísmica y anticiclónica.
Si se aprobara un plan de prevención de riesgos naturales previsibles en una de las zonas mencionadas en el párrafo primero, éste podrá fijar normas mejor adaptadas, de conformidad con lo dispuesto en el artículo L.562-1.
Un decreto adoptado en Conseil d'Etat definirá las condiciones de aplicación del presente artículo.
Artículo L563-2 (Ley nº 2005-157 de 23 de febrero de 2005 art. 190 V Diario Oficial de 24 de febrero de 2005) (Disposición nº 2005-1527 de 8 de diciembre de 2005 art. 34 V Diario Oficial de 9 de diciembre de 2005 con entrada en vigor el 1 de julio de 2007)
Cuando en las zonas de montaña no existiera un plan de prevención de riesgos naturales previsibles, los documentos que recojan planes de urbanismo y los proyectos de obras, construcciones o instalaciones sujetos a una solicitud de autorización o a una decisión de evaluación del riesgo, tendrán en cuenta los riesgos naturales específicos de estas zonas, tanto si se tratara de riesgos existentes conocidos como de riesgos que pudieran ser ocasionados por alguna modificación prevista del medio.
Esta evaluación se hará con arreglo a la información de que pudiera disponer la autoridad competente. Sin perjuicio lo dispuesto en los dos párrafos anteriores, los representantes del Estado citados en el artículo L.
145-11 del Código de Urbanismo, en lo que respecta a los nuevos centros turísticos de montaña, y en los artículos L. 472-1 a L. 472-5 del mismo Código, en lo que respecta a los remontes mecánicos, tendrá en consideración los riesgos naturales para la concesión de las autorizaciones correspondientes.
Artículo L563-3 (Introducido por la Ley nº 2003-699 de 30 de julio de 2003 art. 42 Diario Oficial de 31 de julio de 2003)
I. - En las zonas expuestas al riesgo de inundaciones, el Alcalde, con la asistencia de los servicios competentes del Estado, elaborará un inventario en el que figurarán los puntos del término municipal donde se producen crecidas habituales, así como las crecidas históricas, las nuevas crecidas excepcionales o las transgresiones marinas. El municipio o la agrupación de entidades territoriales competente señalizará, conservará y protegerá estos puntos señalizados.
II. - Será de aplicación lo dispuesto en la Ley nº 43-374 de 6 de julio de 1943, relativa a la ejecución de los trabajos geodésicos y catastrales y a la conservación de las señales, mojones y marcas de localización.
III. - Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente artículo (ver nota).
NOTA: Decreto n° 2005-233 de 14 de marzo de 2005, publicado en el Diario Oficial de la República Francesa de 16 de marzo de 2005.
Artículo L563-4 (Introducido por la Ley nº 2003-699 de 30 de julio de 2003 art. 47 Diario Oficial de 31 de julio de 2003)
Lo dispuesto en los artículos L.54 a L.56-1 del Código de Correos y Telecomunicaciones se aplicará igualmente a los radares hidrometeorológicos, cuya lista será establecida por Orden conjunta del Ministro de Transportes y del Ministro de Medio Ambiente.
Artículo L563-5 (Introducido por la Ley nº 2003-699 de 30 de julio de 2003 art. 78 Diario Oficial de 31 de julio de 2003)
I. - El Estado y sus entidades públicas comunicarán gratuitamente los datos de que dispongan a las entidades territoriales o a sus agrupaciones, cuando éstas lo solicitaran y siempre que lo justifique la seguridad de las personas y de los bienes situados dentro del territorio de su competencia. No obstante, podrán decidir que los gastos de reproducción y comunicación de estos datos sean sufragados por los solicitantes.
II. - Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente artículo. Este decreto precisará, en particular, la información en poder del Estado o de sus entidades públicas a la que podrán acceder gratuitamente las entidades territoriales.
Artículo L563-6 (Introducido por la Ley nº 2003-699 de 30 de julio de 2003 art. 43 Diario Oficial de 31 de julio de 2003)
I. - Los municipios o sus agrupaciones competentes en materia de documentos de urbanismo elaborarán, cuando fuera necesario, mapas de los lugares donde estuvieran ubicadas las cavidades y galerías subterráneas susceptibles de provocar derrumbamientos del suelo.
II. - El que conociere la existencia de una cavidad o galería subterránea cuyo derrumbamiento pudiera causar perjuicios a las personas o los bienes, o tuviera indicios que revelaran su existencia, lo comunicará al Alcalde, quien comunicará de inmediato al representante del Estado en el departamento o al Presidente del Consejo General los elementos de que dispusiera al respecto.
El que difundiere información manifiestamente errónea, engañosa o divulgada con intención dolosa sobre la existencia de una cavidad o galería subterránea será sancionado con una multa de 30.000 euros.
III. - El representante del Estado en el departamento publicará y mantendrá actualizada, con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat, la lista de los municipios de los que hubiera tenido conocimiento por sus Alcaldes de la existencia de una cavidad o galería subterránea y de aquéllos donde se tuviera una presunción real y seria de la existencia de dicha cavidad.
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CÓDIGO DE MEDIO AMBIENTE Capítulo IV Previsión de las crecidas Artículos L564-1 a
L564-3
Artículo L564-1 (Introducido por la Ley nº 2003-699 de 30 de julio de 2003 art. 41 Diario Oficial de 31 de julio de 2003)
La organización de la vigilancia, previsión y transmisión de la información sobre crecidas será competencia del Estado.
Artículo L564-2 (Introducido por la Ley nº 2003-699 de 30 de julio de 2003 art. 41 Diario Oficial de 31 de julio de 2003)
I. - El Prefecto coordinador de cuenca establecerá un plan director de previsión de las crecidas en cada cuenca, con objeto de garantizar la coherencia de los dispositivos que las entidades territoriales o sus agrupaciones, bajo su responsabilidad y para satisfacer sus propias necesidades, pudieran establecer para la vigilancia de las crecidas en algunos cursos de agua o zonas de estuario, paralelamente a los dispositivos previstos por el Estado y sus entidades públicas.
II. - Para satisfacer las necesidades del funcionamiento de sus sistemas de vigilancia, las entidades territoriales o sus agrupaciones podrán acceder gratuitamente a los datos recogidos y a las previsiones elaboradas gracias a los dispositivos de vigilancia establecidos por el Estado, sus entidades públicas y los titulares de explotaciones de obras hidráulicas.
III. - La información recogida y las previsiones elaboradas gracias a los dispositivos establecidos por las entidades territoriales o sus agrupaciones serán remitidas a las autoridades facultadas para ejercer las funciones de policía. Los responsables de los equipamientos o explotaciones que precisaran esta información podrán acceder a ella de forma gratuita.
Artículo L564-3 (Introducido por la Ley nº 2003-699 de 30 de julio de 2003 art. 41 Diario Oficial de 31 de julio de 2003)
I. - La organización de la vigilancia, previsión y transmisión de la información sobre las crecidas por parte del Estado, sus entidades públicas y, en su caso, las entidades territoriales o sus agrupaciones, será objeto de reglamentos prefectorales.
II. - Un decreto adoptado en Conseil d'Etat precisará las condiciones de aplicación del presente capítulo.
Capítulo V Comisiones departamentales y planes de prevención de riesgos naturales mayores Artículos L565-1 a
L565-2
Artículo L565-1 (Ley nº 2003-699 de 30 de julio de 2003 art. 44 Diario Oficial de 31 de julio de 2003)
Derogado por la (Disposición nº 2004-637 de 1 de julio de 2004 art. 32 Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2005)
En cada departamento, se creará una Comisión Departamental de riesgos naturales mayores. Esta Comisión, presidida por el Prefecto, estará formada a partes iguales por: 1° Representantes electos de las entidades territoriales, de las entidades públicas de cooperación intermunicipal y
de las entidades públicas territoriales de cuenca situadas en todo el departamento o en parte del mismo; 2° Representantes de organizaciones profesionales, entre los cuales un representante de las organizaciones de
explotaciones agrícolas, un representante de las cámaras profesionales, un representante de las aseguradoras y un representante del cuerpo de notarios; representantes de asociaciones, de los cuales uno será representante de la asociación de víctimas del siniestro, si existiera; representantes de la propiedad inmobiliaria y forestal, así como personas cualificadas, entre las que se encuentre un representante de la prensa escrita o audiovisual local;
3° Representantes de las administraciones, especialmente de la Inspección Académica y los servicios de emergencias, así como de las entidades públicas estatales interesadas.
Esta Comisión emitirá su dictamen sobre: a) Las acciones a llevar a cabo para dar a conocer los riesgos, y sobre todo los programas de sensibilización de los
alcaldes en materia de prevención de riesgos naturales; b) Los documentos de información sobre los riesgos, elaborados según lo dispuesto en el artículo L. 125-2; c) La delimitación de las zonas de erosión y los programas de acción correspondientes, así como su aplicación,
definidos con arreglo a las condiciones previstas por el artículo L. 114-1 del Código Rural; d) La delimitación de las zonas de retención temporal de las aguas de crecida o de escorrentía superficial y de las
zonas de movilidad de un curso de agua citadas en el artículo L. 211-12, así como las obligaciones que conlleven para los propietarios y titulares de las explotaciones;
e) La programación, concepción, ejecución y actualización de los planes de prevención de riesgos naturales previsibles;
f) La naturaleza y el importe previsto para las ayudas destinadas a financiar las obras que permitan reducir el riesgo;
g) Las expropiaciones por causa de riesgo natural mayor; h) Un informe, elaborado por el Prefecto, sobre otros destinos del Fondo de prevención de riesgos naturales
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CÓDIGO DE MEDIO AMBIENTE mayores;
i) El examen retrospectivo de la experiencia adquirida tras la catástrofe. La Comisión será informada anualmente de las solicitudes de reconocimiento de catástrofe natural. Tendrá competencia para dictaminar sobre todos los informes, programas o proyectos relativos a la prevención y la
gestión de riesgos naturales que le hubieran sido sometidos por el Prefecto. Asimismo, a instancia del Prefecto, podrá conocer de cualquier asunto acerca del impacto que pudieran tener las
servidumbres constituidas al amparo del artículo L. 211-12 sobre el desarrollo sostenible del espacio rural afectado.
Artículo L565-2 (Introducido por la Ley nº 2003-699 de 30 de julio de 2003 art. 45 Diario Oficial de 31 de julio de 2003)
I. - El Prefecto podrá elaborar planes de prevención de riesgos naturales, tomando en consideración los documentos interdepartamentales relativos a los riesgos existentes. Estos planes especificarán las acciones a adoptar por el departamento en materia de:
- conocimiento del riesgo; - vigilancia y previsión de los fenómenos; - información y educación sobre los riesgos; - toma en consideración de los riesgos en la ordenación del territorio; - obras para reducir el riesgo; - integración de las experiencias. La Comisión Departamental de riesgos naturales mayores emitirá un dictamen sobre estos planes. II. - Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente artículo.
Título VII Prevención de la contaminación acústica y visual Artículos L571-2 a
L572-11
Capítulo I Lucha contra la contaminación acústica Artículos L571-2 a
L571-1
Artículo L571-1 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
Las disposiciones del presente capítulo tienen por objeto, en los ámbitos no regulados por otras disposiciones, prevenir, eliminar o reducir la emisión o propagación innecesaria u ocasionada por descuido de ruidos y vibraciones susceptibles de presentar un peligro o causar una perturbación excesiva a las personas, perjudicar su salud o atentar contra el medio ambiente.
Sección I Emisiones acústicas procedentes de objetos Artículos L571-2 a
L571-5
Artículo L571-2 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
Sin perjuicio de las demás disposiciones legales y reglamentarias aplicables mediante decretos adoptados en Conseil d'Etat y previo dictamen del Consejo Nacional del Ruido, se establecerán para los objetos susceptibles de producir molestias acústicas elevadas como para los dispositivos destinados a reducir las emisiones acústicas:
1° Las disposiciones relativas a la determinación de los niveles sonoros admisibles, sus condiciones de utilización, los métodos de medición del ruido, las indicaciones escritas que deban llevar los objetos y dispositivos así como las distintas modalidades de información al público;
2° Las normas aplicables para la fabricación, la importación y la comercialización; 3° Los procedimientos de homologación y de certificación necesarios para acreditar su conformidad con las
prescripciones relativas a los niveles sonoros admisibles; 4° Las condiciones de concesión y revocación por la autoridad administrativa de la autorización a los organismos
encargados de expedir las homologaciones y certificaciones; 5° Las condiciones en que la autoridad administrativa podrá verificar o hacer verificar a través de estos organismos
y por cuenta del poseedor, la conformidad de los objetos y dispositivos con las disposiciones mencionadas en el apartado 1º del presente artículo.
Artículo L571-3 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
El profesional que vendiera o arrendara objetos y dispositivos de protección contra la contaminación acústica regulados conforme a lo dispuesto en el artículo L. 571-2, tendrá la obligación de informar de sus características a quien los comprara o arrendara.
Artículo L571-4 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
El contrato por el que se transmitiera la propiedad o el disfrute de un objeto o dispositivo que no estuviera provisto
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CÓDIGO DE MEDIO AMBIENTE de la homologación o de la certificación contempladas en el artículo L. 571-2 o que no cumpliera con las disposiciones establecidas en este artículo, será nulo de pleno derecho.
Artículo L571-5 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
Las disposiciones de la presente sección no serán aplicables a los objetos y dispositivos diseñados para el cumplimiento de las misiones de defensa nacional.
Dichas disposiciones no podrán sustituir a las más protectoras contempladas en el Código de Aviación Civil, en el Código de la Circulación y en el Código de Trabajo.
Sección II Actividades ruidosas Artículos L571-6 a
L571-8
Artículo L571-6 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
Sin perjuicio de las demás disposiciones legales y reglamentarias aplicables, las actividades ruidosas ejercidas en las empresas, establecimientos, centros de actividades o instalaciones públicas o privadas, permanentes o temporales y que no figuraran en el catálogo de instalaciones clasificadas para la protección del medio ambiente, podrán estar sujetas a disposiciones generales o, cuando debido a la contaminación acústica producida fueran susceptibles de representar peligros o perturbaciones como los mencionados en el artículo L. 571-1, estas actividades podrán estar sujetas a autorización.
Las actividades deportivas y al aire libre ruidosas susceptibles de causar molestias acústicas podrán ser sometidas a las mismas disposiciones.
La enumeración de actividades sujetas a autorización se incluirá en un catálogo de actividades ruidosas establecido por decreto adoptado en Conseil d'Etat, previo dictamen del Consejo Nacional del Ruido.
Tanto las disposiciones generales citadas en el párrafo primero como las disposiciones impuestas a actividades sujetas a autorización, determinarán las medidas de prevención, acondicionamiento y aislamiento acústico aplicables a dichas actividades, las condiciones de alejamiento de tales actividades respecto a las viviendas así como los procedimientos para la realización de controles técnicos.
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente artículo, especialmente el procedimiento de concesión de autorizaciones, los documentos que debieran entregarse para sustentar la solicitud de autorización y las modalidades de información o de consulta pública.
La concesión de la autorización citada en el párrafo primero estará supeditada a la realización de un estudio de impacto ambiental en las condiciones establecidas en los artículos L. 122-1 a L. 122-3, y será sometida a consulta pública con arreglo a las condiciones establecidas por decreto.
Los plazos y condiciones para que las actividades existentes cumplan con las disposiciones establecidas según lo dispuesto en el presente artículo serán determinados por decreto adoptado en Conseil d'Etat.
Artículo L571-7 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
Con objeto de reducir las molestias provocadas por el tráfico de helicópteros en las zonas de alta densidad de población, estará prohibido realizar vuelos de entrenamiento con bases de partida y llegada en aeropuertos situados en estas zonas, así como vuelos turísticos circulares por encima de las mismas zonas sin escala o escala inferior a una hora de duración. Por decreto adoptado en Conseil d'Etat se determinarán las limitaciones que el Ministro competente en materia de aviación civil podrá establecer respecto al tráfico de helicópteros con bases de partida y llegada en aeropuertos situados en dichas zonas o por encima de las mismas, el número de movimientos, horario de utilización, reparto del tiempo de los vuelos, nivel sonoro, tipo de aparatos o procedimientos de despegue y aterrizaje.
Cuando sobrevolaran aglomeraciones urbanas que no estuvieran situadas en zonas de alta densidad de población, los helicópteros tendrán que mantenerse a determinada altura mínima.
Estas disposiciones no serán aplicables a los transportes sanitarios ni a las misiones urgentes de protección civil. Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente artículo.
Artículo L571-8 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
Las disposiciones del artículo L. 571-6 no serán aplicables a las actividades e instalaciones dependientes de la defensa nacional, de los servicios públicos de protección civil y de lucha contra incendios, ni a las obras e infraestructuras de transportes terrestres sujetas a lo dispuesto en los artículos L. 571-9 y L. 571-10 del presente Código y L. 111-11, L. 111-11-1 y L. 111-11-2 del Código de la Construcción y de la Vivienda, ni a los aeropuertos cuya creación estuviera sujeta a una orden ministerial.
No obstante, las medidas para reducir las molestias acústicas derivadas de estas actividades e instalaciones, ordenadas por la autoridad administrativa de la cual dependieran, se darán a conocer públicamente.
Sección III Acondicionamientos e infraestructuras de transportes terrestres Artículos L571-9 a
L571-10
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CÓDIGO DE MEDIO AMBIENTE Artículo L571-9 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
I. - La concepción, estudio y realización de los acondicionamientos e infraestructuras de transportes terrestres tendrán en cuenta las molestias acústicas provocadas en sus inmediaciones por la ejecución de los mismos.
II. - Por decreto adoptado en Conseil d'Etat se determinarán las disposiciones aplicables: 1° A las nuevas infraestructuras; 2° A las modificaciones o transformaciones significativas de infraestructuras existentes; 3° A los transportes guiados (trenes, metros, instalaciones por cable, etc.) y, especialmente, a las infraestructuras
para trenes de alta velocidad; 4° A los lugares de las obras. III. - El expediente de solicitud de autorización para la ejecución de obras relacionadas con estos
acondicionamientos e infraestructuras, será sometido a consulta pública e incluirá las medidas previstas para eliminar o reducir las consecuencias perjudiciales derivadas de la contaminación acústica.
Artículo L571-10 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
En cada departamento, el Prefecto determinará y clasificará las infraestructuras de transportes terrestres en función de sus características acústicas y del tráfico. Basándose en esta clasificación y previa consulta con los municipios, el Prefecto determinará en las proximidades de estas infraestructuras los sectores afectados por la contaminación acústica, los niveles de molestias acústicas que se debieran en cuenta para la construcción de edificios y las prescripciones técnicas para reducirlos.
Los planes de ocupación de los suelos de los municipios interesados tendrán en cuenta los sectores determinados y las prescripciones relativas a las características acústicas.
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente artículo y, especialmente, las condiciones en las que se informará a los constructores y se clasificarán las infraestructuras en función de la contaminación acústica.
Sección IV Contaminación acústica causada por los transportes aéreos Artículos L571-11 a
L571-16
Subsección 1 Plan de exposición a la contaminación acústica Artículo L571-11
Artículo L571-11 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
Las disposiciones relativas a la utilización de suelos que estuvieran expuestos a las molestias causadas por la contaminación acústica de las aeronaves se encuentran recogidas en el Código de Urbanismo (libro I, título IV, capítulo VII).
Subsección 2 Entorno medioambiental de los aeropuertos Artículo L571-12
Artículo L571-12 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
Las disposiciones relativas a la Autoridad para el control de la contaminación acústica aeroportuaria se encuentran recogidas en el Código de Aviación Civil (libro II, título II, capítulo VII).
Subsección 3 Comisión consultiva de medio ambiente Artículo L571-13
Artículo L571-13 (Ley nº 2003-1312 de 30 de diciembre de 2003 art. 19 III 2 Ley de finanzas rectificativa para 2003 Diario Oficial de 31 de diciembre de 2003) (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004) (Disposición nº 2004-637 de 1 de julio de 2004 art. 31 I, II Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2006) (Disposición nº 2004-637 de 1 de julio de 2004 art. 31 I, II Diario Oficial de 2 de julio de 2004 con entrada en vigor el 1 de julio de 2006) (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 art. 78 XXXII 3° Diario Oficial de 10 de diciembre de 2004 con entrada en vigor el 1 de julio de 2005)
I. - La autoridad administrativa podrá crear en los aeropuertos citados en el artículo L. 147-2 del Código de Urbanismo una Comisión Consultiva de Medio Ambiente. Su creación será preceptiva cuando la hubiera solicitado un municipio en el que una parte de su territorio estuviera incluido en el plan de exposición a la contaminación acústica producida por el aeropuerto. Su creación será igualmente preceptiva para los aeropuertos mencionados en el punto I del artículo 1609 quatervicies A del Código General de Impuestos.
II. - La Comisión será consultada acerca de cualquier cuestión relevante relacionada con el acondicionamiento o la
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CÓDIGO DE MEDIO AMBIENTE explotación del aeropuerto y que pudiera tener repercusiones sobre el medio ambiente. Podrá también emitir recomendaciones acerca de estas cuestiones por iniciativa propia. Cuando se tratara de uno de los aeropuertos citados en el punto I del artículo 1609 quatervicies del Código General de Impuestos, las recomendaciones relativas al ruido serán transmitidas a la Autoridad para el control de la contaminación acústica aeroportuaria. La Comisión Consultiva de Medio Ambiente coordinará, en su caso, la redacción de los documentos escritos que formalicen los compromisos adoptados por las diferentes partes interesadas en la explotación del aeropuerto, a fin de garantizar el control de la contaminación acústica derivada de la actividad aeroportuaria.
III. - Se encargará especialmente del seguimiento y aplicación de las Cartas de calidad medioambiental. Respecto de la contaminación acústica causada por el transporte aéreo, podrá someter a la Autoridad para el control de la contaminación acústica aeroportuaria cualquier cuestión relacionada con el cumplimiento de estos objetivos y cualquier solicitud de estudio o peritaje.
IV., V. - Párrafos derogados. VI. - El titular de la explotación del aeropuerto pondrá a disposición de la Comisión los medios para su
funcionamiento. VII, VIII, IX, X. - Párrafos derogados. XI. - Esta Comisión estará formada: 1° En una tercera parte, por representantes de las profesiones aeronáuticas; 2° En otra tercera parte, por representantes de las entidades locales interesadas; 3° En la tercera parte restante, por representantes de las asociaciones de vecinos del aeropuerto y de las
asociaciones de protección del medio ambiente y de la calidad de vida afectadas por el entorno aeroportuario. XII. - Estará presidida por el representante del Estado. XIII. - Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente artículo NOTA: El artículo 31 de la Disposición n° 2004-637 de 1 de julio de 2004 ha sido modificado por el artículo 78
XXXII 3° de la Ley n° 2004-1343 de 9 de diciembre de 2004. El artículo 34-7 de la misma disposición, introducido por el artículo 78 XXXII 4° de la Ley n° 2004-1343 fija la
entrada en vigor el 1 de julio de 2005.
Subsección 4 Ayuda destinada a los vecinos de los aeropuertos Artículos L571-14 a
L571-16
Artículo L571-14 (Ley nº 2003-1312 de 30 de diciembre de 2003 art. 19 III 2 b Ley de finanzas rectificativa para 2003 Diario Oficial de 31 de diciembre de 2003) (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
Los titulares de explotación de los aeropuertos mencionados en el punto I del artículo 1609 quatervicies A del Código General de Impuestos contribuirán a los gastos asumidos por los vecinos de los aeropuertos para cumplir con la aplicación de las disposiciones necesarias para la atenuación de la contaminación acústica, en las condiciones establecidas por decreto adoptado en Conseil d'Etat. En el caso de los aeropuertos mencionados en el punto IV del artículo 1609 quatervicies A del mismo Código, dicha contribución será financiada por las tasas cobradas por cada aeropuerto en virtud de lo dispuesto en el mismo artículo.
Artículo L571-15 (Ley nº 2003-1312 de 30 de diciembre de 2003 art. 19 III 2 c Ley de finanzas rectificativa para 2003 Diario Oficial de 31 de diciembre de 2003) (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
Con el fin de definir la población vecina con derecho a solicitar la ayuda, se creará en cada aeropuerto mencionado en el punto I del artículo1609 quatervicies A del Código General de Impuestos un mapa de ruidos, para comprobar la molestia real sufrida en torno a estos aeropuertos. Las modalidades de puesta en práctica y revisión de este plan serán establecidas por decreto.
Artículo L571-16 (Ley nº 2003-1312 de 30 de diciembre de 2003 art. 19 III 2 d Ley de finanzas rectificativa para 2003 Diario Oficial de 31 de diciembre de 2003) (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
En cada aeropuerto afectado se creará una Comisión que será consultada sobre el contenido del mapa de ruidos y sobre la asignación de las ayudas destinadas a atenuar la contaminación acústica sufrida por el vecindario.
La misma estará formada por representantes del Estado, de las entidades territoriales interesadas, de los titulares de explotación de aeronaves, de las asociaciones de vecinos de los barrios colindantes y del responsable de la gestión del aeropuerto.
La composición y las normas de funcionamiento de esta Comisión serán definidas por decreto adoptado en Conseil d'Etat.
Sección V Controles y sanciones administrativas Artículo L571-17
Artículo L571-17
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CÓDIGO DE MEDIO AMBIENTE (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
I. - Independientemente de las diligencias penales que se pudieran ejercer, la autoridad administrativa competente podrá, previo requerimiento y procedimiento contradictorio, adoptar todas las medidas dirigidas a poner fin a las perturbaciones derivadas de la emisión o propagación de la contaminación acústica originada por cualquier objeto o dispositivo no provisto de la homologación o de la certificación contempladas en el artículo L. 571-2, o que incumpliera las disposiciones establecidas en este artículo, y podrá decidir provisionalmente el cese del funcionamiento, la inmovilización, la prohibición de comercialización, la incautación del objeto o dispositivo en el lugar donde se encontrara, o solicitar al Juez que ordene la inutilización o destrucción del objeto o dispositivo.
II.- Independientemente de las diligencias penales que se pudieran ejercer, cuando la autoridad administrativa competente hubiera comprobado el incumplimiento de lo dispuesto en el artículo L. 571-6 o en los reglamentos y resoluciones individuales adoptados para su aplicación, dirigirá al titular de la explotación o al responsable de la actividad un requerimiento instándole a su cumplimiento en un plazo determinado. Transcurrido el plazo fijado para la ejecución sin haberse cumplido lo ordenado y tras haber solicitado al interesado que presente su defensa, la autoridad administrativa competente podrá:
1° Obligar al titular de la explotación o al responsable de la actividad a consignar ante un contable público una suma correspondiente al valor del importe de los trabajos que se debieran realizar, la cual le será restituida conforme el mismo vaya procediendo a la ejecución de las medidas impuestas. Esta suma se recaudará en las mismas condiciones que las establecidas en materia de crédito que no sea relativo al impuesto y al patrimonio;
2° Ordenar que de oficio y por cuenta del titular de la explotación o del responsable de la actividad se proceda a la ejecución de las medidas impuestas;
3° Suspender la actividad hasta el cumplimiento las medidas impuestas. III. - Las sumas consignadas en aplicación de lo dispuesto en el apartado 1º del punto II, podrán ser utilizadas para
pagar los gastos derivados de la ejecución de oficio de las medidas previstas en el apartado 2º del punto II.
Sección VI Disposiciones penales Artículos L571-18 a
L571-26
Subsección 1 Comprobación de las infracciones Artículos L571-18 a
L571-21
Artículo L571-18 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
I. - Además de los funcionarios y agentes de la policía judicial que efectúan sus funciones de conformidad con las disposiciones del Código de Proceso Penal, estarán facultados para investigar y comprobar las infracciones a lo dispuesto en el presente capítulo, así como en los reglamentos y disposiciones adoptados para su aplicación:
1° Los agentes jurados y nombrados a estos efectos en las condiciones determinadas por decreto adoptado en Conseil d'Etat, pertenecientes a los servicios del Estado encargados de medio ambiente, agricultura, industria, infraestructuras, transportes, mar, sanidad, juventud y deportes;
2° Las personas encargadas de la inspección de las instalaciones clasificadas o de peritajes, mencionadas en el artículo L. 514-5;
3° Los agentes de aduanas; 4° Los agentes nombrados para la represión del fraude; II. - Asimismo, los funcionarios y agentes jurados de las entidades territoriales, mencionados en el artículo L.
1312-1 del Código de Salud Pública, nombrados a estos efectos en las condiciones establecidas por decreto adoptado en Conseil d'Etat, estarán facultados para proceder a la investigación y comprobación de las infracciones a las normas relativas a la lucha contra el ruido producido por los vecinos, de conformidad con lo establecido por decreto adoptado en Conseil d'Etat.
Artículo L571-19 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
Con el objeto de investigar y comprobar las infracciones, los agentes mencionados en el artículo L. 571-18 tendrán acceso a los locales, instalaciones y lugares donde se hubieran producido los hechos que dieran lugar a las infracciones, con exclusión de los domicilios y de la parte de los locales que sirviera de domicilio. Podrán solicitar que se les haga entrega de cualquier documento profesional, llevarse una copia del mismo y recoger, previa petición o in situ, la información y los justificantes necesarios para el cumplimiento de su misión. Los propietarios y titulares de la explotación estarán obligados de facilitarles el acceso.
Dichos agentes sólo podrán acceder a los citados locales entre las 8 y las 20 horas, o fuera de ese horario si el establecimiento estuviera abierto al público, o se estuviera llevando a cabo una actividad.
El Fiscal de la República será previamente informado de las operaciones previstas para la investigación de las infracciones. Podrá oponerse a dichas operaciones.
Artículo L571-20 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
Las infracciones a las disposiciones del presente capítulo y a los reglamentos dictados para su aplicación serán
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CÓDIGO DE MEDIO AMBIENTE comprobadas por atestados y los hechos recogidos en los mismos se presumirán ciertos, salvo prueba en contrario.
Los atestados deberán ser remitidos al Fiscal de la República dentro de los cinco días siguientes a su incoación, bajo pena de nulidad.
Se remitirá asimismo una copia al interesado, dentro del mismo plazo.
Artículo L571-21 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
I. - Dentro de las actuaciones previstas en el artículo L. 571-18, los agentes mencionados en dicho artículo, exceptuando los funcionarios y agentes de las entidades territoriales, podrán:
1° Tomar muestras para realizar análisis o ensayos. Las condiciones de aplicación del presente párrafo se establecerán por decreto adoptado en Conseil d'Etat;
2° Consignar, a la espera de los controles necesarios, los objetos o dispositivos que supuestamente no estuvieran en conformidad con las disposiciones del presente capítulo y con los reglamentos dictados para su aplicación.
II. - No podrá procederse a esta consignación sin la autorización del Presidente del Tribunal de Grande Instance en cuya circunscripción se encontraran los objetos y dispositivos en litigio, o sin la autorización del Magistrado delegado a estos efectos.
III. - Dicho Magistrado entrará a conocer del litigio a instancia de los agentes mencionados en el presente artículo y. resolverá dentro de las veinticuatro horas siguientes.
IV. - El Presidente del Tribunal de Grande Instance comprobará que la petición de consignación que se le hubiera sometido esté fundamentada. Dicha petición incluirá todos los elementos de información que justificaran esta medida.
V. - La medida de consignación no podrá tener una duración superior a quince días. En caso de dificultades particulares vinculadas al examen de los objetos en litigio, el Presidente del Tribunal de Grande Instance podrá prorrogar la medida por un plazo de igual duración mediante resolución motivada.
VI. - Los objetos consignados quedarán a cargo de su poseedor. VII. - El Presidente del Tribunal de Grande Instance podrá ordenar la suspensión de la medida de consignación en
cualquier momento. Se tendrá derecho a esta suspensión en todos los casos en los que los agentes habilitados hubieran comprobado la idoneidad de los objetos consignados o la ejecución de las actuaciones necesarias para dar cumplimiento a los requerimientos.
VIII. - En caso de incumplimiento, los eventuales gastos correrán por cuenta del infractor en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Subsección 2 Sanciones Artículos L571-22 a
L571-26
Artículo L571-22 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
Será castigado con la pena de seis meses de prisión y una multa de 7.500 euros el que obstaculizare los controles llevados a cabo por los agentes mencionados en el artículo L. 571-18.
Artículo L571-23 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
Será castigado con la pena de dos años de prisión y una multa de 30.000 euros el que: 1° Fabricare, importare o comercializare objetos o dispositivos sin la debida homologación o certificación prevista
en el artículo L. 571-2; 2° Ejerciere una actividad sin la autorización mencionada en el artículo L. 571-6, o continuare ejerciendo una
actividad sin ajustarse a lo ordenado en el requerimiento contemplado en el punto II del artículo L. 571-17.
Artículo L571-24 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
En caso de condena, el Tribunal podrá ordenar, por cuenta del condenado, la retirada, la incautación o la destrucción de los objetos o dispositivos objeto de la infracción.
Asimismo, en caso de condena por incumplimiento de lo dispuesto en el artículo L. 571-6, el Tribunal podrá acordar la prohibición temporal de la actividad objeto de la acusación hasta el cumplimiento de las disposiciones que se hubieran infringido.
Artículo L571-25 (Disposición nº 2004-204 de 9 de marzo de 2004 art. 198 Diario Oficial de 10 de marzo de 2004 con entrada en vigor el 1 de enero de 2005) (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
En caso de acción judicial por infracción a las disposiciones del presente capítulo o a los reglamentos y decisiones individuales adoptados para su aplicación, el Tribunal, tras haber declarado culpable al inculpado, podrá aplazar la imposición de la pena instándole a cumplir, en un plazo establecido, las disposiciones por él dictadas y destinadas a
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CÓDIGO DE MEDIO AMBIENTE poner fin a la actuación ilícita y a reparar sus consecuencias.
El Tribunal podrá acompañar el requerimiento con una sanción pecuniaria cuya cuantía y fecha de pago fijará. El aplazamiento podrá otorgarse una sola vez y podrá ser acordado aunque el inculpado no comparezca
personalmente. En todo caso la resolución podrá ir acompañada de la ejecución provisional de la resolución de aplazamiento.
En la segunda vista, que deberá celebrarse como máximo en el plazo de un año a partir de la decisión de aplazamiento, el Tribunal impondrá las penas y liquidará, si procediera, la sanción pecuniaria. Podrá, en su caso, suprimir la sanción pecuniaria o reducir su importe. La sanción pecuniaria será recaudada por el contable del Tesoro como una multa penal. No podrá dar lugar a prisión cautelar por impago de deudas.
Artículo L571-26 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 Diario Oficial de 14 de noviembre de 2004)
En caso de condena por infracción a lo dispuesto en el presente capítulo, el Tribunal podrá ordenar, por cuenta del condenado, la publicación íntegra o por extractos de su resolución y, eventualmente, la difusión, en uno o varios periódicos, de un edicto cuyos términos establecerá explícitamente, informando públicamente de los motivos y del contenido de su resolución. Podrá ordenar igualmente su publicación en las condiciones y bajo las penas previstas, según los casos, en los artículos 131-35 y 434-39 del Código Penal, sin que los gastos de su publicación puedan superar la cuantía de la sanción impuesta.
Capítulo II Prevención de la contaminación visual Artículos L572-1 a
L572-11
Artículo L572-1 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 2° Diario Oficial de 14 de noviembre de 2004) (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 3°, 4° Diario Oficial de 14 de noviembre de 2004) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 4 II Diario Oficial de 27 de octubre de 2005)
El ruido ambiental en las inmediaciones de las principales infraestructuras de transporte y en las grandes aglomeraciones urbanas será objeto de evaluación y dará lugar a la adopción de acciones de prevención o de reducción, con arreglo a las condiciones previstas en el presente capítulo.
Artículo L572-2 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 3°, 4° Diario Oficial de 14 de noviembre de 2004) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 4 II Diario Oficial de 27 de octubre de 2005)
Se elaborará un mapa de ruidos, así como un plan de prevención del ruido ambiental en relación con: 1° Cada una de las infraestructuras viarias y ferroviarias cuyas características serán establecidas por decreto
adoptado en Conseil d'Etat. 2° Las aglomeraciones urbanas de más de 100.000 habitantes cuyo listado será establecido por decreto adoptado
en Conseil d'Etat.
Artículo L572-3 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 3°, 4° Diario Oficial de 14 de noviembre de 2004) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 4 II Diario Oficial de 27 de octubre de 2005)
Los mapas de ruidos evaluarán los niveles de exposición al ruido ambiental y permitirán realizar previsiones generales sobre su evolución.
Los mismos se compondrán de un conjunto de gráficos y datos numéricos, y se elaborarán basándose en indicadores de evaluación de los niveles sonoros definidos con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Los mapas de ruidos relativos a las aglomeraciones urbanas tendrán en cuenta el ruido producido por el tráfico rodado, ferroviario y aéreo, así como por las actividades industriales y, en su caso, otras fuentes de ruido.
Artículo L572-4 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 3°, 4° Diario Oficial de 14 de noviembre de 2004) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 4 II Diario Oficial de 27 de octubre de 2005)
I. - Estarán encargados de elaborar los mapas de ruidos: 1° El representante del Estado, cuando dichos mapas fueran relativos a las infraestructuras de transporte citadas
en el apartado 1° del artículo L. 572-2; 2° Los municipios situados dentro del perímetro de las aglomeraciones urbanas de más de 100.000 habitantes o,
cuando existieran, las entidades públicas de cooperación intermunicipal competentes en materia de lucha contra la contaminación acústica.
II. - Las autoridades u organismos de gestión de las infraestructuras mencionadas en el apartado 1° del artículo L. 572-2 remitirán a las autoridades citadas en el punto I del presente artículo, si procediera, los elementos necesarios para la elaboración de los mapas de ruidos, dentro de los plazos compatibles con los periodos fijados por los artículos L. 572-5 y L. 572-9.
Artículo L572-5 (introducido por la Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 3°, 4° Diario Oficial de 14 de noviembre de 2004)
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CÓDIGO DE MEDIO AMBIENTE Los mapas de ruidos se reexaminarán y, en su caso, se revisarán cada cinco años como mínimo. Se pondrán a disposición pública, en su caso por medios electrónicos.
Artículo L572-6 (introducido por la Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 3°, 4° Diario Oficial de 14 de noviembre de 2004)
Los planes de prevención del ruido ambiental tienen por objeto la prevención de los efectos del ruido y la reducción, en su caso, de los niveles sonoros, así como la protección de zonas tranquilas. Se entenderá por zonas tranquilas aquellos espacios exteriores caracterizados por su escasa exposición al ruido y para los cuales la autoridad responsable del plan desea controlar la evolución de dicha exposición teniendo en cuenta las actividades humanas practicadas o previstas.
Los planes incluirán una evaluación del número de personas expuestas a un nivel sonoro excesivo e identificarán las fuentes de ruido cuyos niveles se debieran reducir.
Recogerán las medidas previstas por las autoridades competentes para tratar las situaciones identificadas por los mapas de ruidos, especialmente cuando se hubieran superado o se corriera el riesgo de superar los valores límites fijados con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L572-7 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 3°, 4° Diario Oficial de 14 de noviembre de 2004) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 4 II Diario Oficial de 27 de octubre de 2005)
I. - Los planes de prevención del ruido ambiental relativos a autopistas o carreteras de interés nacional o europeo y pertenecientes a la red de comunicaciones viarias y ferroviarias del Estado, serán establecidos por el representante del Estado.
II. - Los planes de prevención del ruido ambiental relativos a las infraestructuras viarias que no sean las mencionadas en el punto I, serán establecidos por las entidades territoriales de las que dependieran dichas infraestructuras.
III. - Los planes de prevención del ruido ambiental relativos a las aglomeraciones urbanas de más de 100.000 habitantes serán establecidos por los municipios situados dentro de su perímetro o, cuando existieran, por las entidades públicas de cooperación intermunicipal competentes en materia de lucha contra la contaminación acústica.
IV. - La autoridad que elaborara el plan deberá contar previamente con el acuerdo de las autoridades u organismos competentes para adoptar y aplicar las medidas recogidas en el mismo.
Artículo L572-8 (introducido por la Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 3°, 4° Diario Oficial de 14 de noviembre de 2004)
Los proyectos de planes de prevención del ruido ambiental será objeto de una consulta pública, con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Los planes de prevención del ruido ambiental serán publicados. Se reexaminarán y, en caso de evolución significativa de los niveles sonoros identificados, se revisarán, cada cinco
años como mínimo.
Artículo L572-9 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 3°, 4° Diario Oficial de 14 de noviembre de 2004) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 4 II Diario Oficial de 27 de octubre de 2005)
I. - Los mapas de ruidos relativos a las aglomeraciones urbanas de más de 250.000 habitantes, a las infraestructuras viarias cuyo tráfico anual fuera superior a 6 millones de vehículos y a las infraestructuras ferroviarias cuyo tráfico anual fuera superior a 60.000 viajeros, será publicadas, a más tardar, el 30 de junio de 2007. Los correspondientes planes de prevención del ruido ambiental serán publicados, a más tardar, el 18 de julio de 2008.
II. - Los demás mapas de ruidos se publicarán como máximo el 30 de junio de 2012, y los planes de acción correspondientes el 18 de julio de 2013 a más tardar.
Artículo L572-10 (introducido por la Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 3°, 4° Diario Oficial de 14 de noviembre de 2004)
Los mapas de ruido y planes de prevención del ruido ambiental cuya elaboración correspondiera a otras autoridades que no fueran el Estado, deberán remitirse al representante del Estado.
Cuando el representante del Estado constatara que alguna de estas autoridades no ha elaborado, reexaminado o publicado un mapa o un plan dentro de los plazos establecidos por los artículos L. 572-5 y L. 572-9, podrá proceder en sustitución y por cuenta de dicha autoridad, previo requerimiento dirigido a la misma.
Artículo L572-11 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 3°, 4° Diario Oficial de 14 de noviembre de 2004) (Ley nº 2005-1319 de 26 de octubre de 2005 art. 4 II Diario Oficial de 27 de octubre de 2005)
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente capítulo
Título VIII Protección de la calidad de vida Artículos L581-1 a
L582-1
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CÓDIGO DE MEDIO AMBIENTE Capítulo I Anuncios publicitarios, rótulos y carteles de preseñalización Artículos L581-1 a
L581-45
Sección I Principios generales Artículos L581-1 a
L581-3
Artículo L581-1 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Se reconocerá a toda persona el derecho a expresar y difundir informaciones e ideas, de cualquier naturaleza mediante anuncios publicitarios, rótulos y carteles de preseñalización, de conformidad con las leyes en vigor y sin perjuicio de lo dispuesto en el presente capítulo.
Artículo L581-2 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Para garantizar la protección de la calidad de vida, el presente capítulo establecerá las disposiciones aplicables a los anuncios publicitarios, rótulos y carteles de preseñalización, visibles desde cualquier vía abierta a la circulación pública, en el sentido determinado por decreto adoptado en Conseil d'Etat. Sus disposiciones no se aplicarán a los anuncios publicitarios, rótulos y carteles de preseñalización situados en el interior de un local, salvo cuando su fin principal fuera servir como soporte publicitario.
Artículo L581-3 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
A efectos del presente capítulo: 1° Se entenderá por anuncio publicitario, con exclusión de los rótulos y carteles de preseñalización, cualquier
inscripción, forma o imagen, destinada a informar al público o a llamar su atención. Los dispositivos cuyo principal objetivo fuera recoger dichas inscripciones, formas o imágenes se considerarán asimilados a dichos anuncios publicitarios;
2° Se entenderá por rótulo cualquier inscripción, forma o imagen colocada sobre un inmueble y relacionada con una actividad ejercida en el mismo;
3° Se entenderá por cartel de preseñalización cualquier inscripción, forma o imagen que indique la proximidad de un inmueble donde se ejerciera una actividad determinada.
Sección II Publicidad exterior Artículos L581-4 a
L581-17
Subsección 1 Disposiciones generales Artículos L581-4 a
L581-6
Artículo L581-4 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
I. - Se prohibirá cualquier anuncio publicitario: 1° En los inmuebles catalogados como monumentos históricos o incluidos en el inventario suplementario; 2° En los monumentos naturales y en los espacios naturales clasificados; 3° En los parques nacionales y las reservas naturales; 4° En los árboles. II. - El Alcalde o en su defecto el Prefecto, a petición o tras dictamen del Consejo Municipal y una vez emitido el
dictamen de la Comisión Departamental competente en materia de espacios naturales, podrá prohibir mediante la correspondiente resolución cualquier anuncio publicitario en los inmuebles de carácter estético, histórico o pintoresco.
III. - El dictamen de la Comisión Departamental competente en materia de espacios naturales será considerado favorable si no hubiera sido emitido en el plazo de dos meses a partir de la consulta que le hubiera sometido el Prefecto o de la solicitud de dictamen de la Comisión dirigida por el Alcalde al Prefecto.
Artículo L581-5 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Cualquier anuncio publicitario deberá mencionar, según los casos, el nombre y la dirección, o bien la denominación o razón social de la persona física o jurídica que se anunciara o hubiera ordenado la colocación del anuncio.
Artículo L581-6 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
La instalación, sustitución o modificación de los dispositivos o materiales que sirvieran de soporte publicitario estarán sujetos a declaración previa ante el Alcalde y el Prefecto con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Subsección 2
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CÓDIGO DE MEDIO AMBIENTE Anuncios publicitarios fuera de las aglomeraciones urbanas Artículo L581-7
Artículo L581-7 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Fuera de aquellos lugares considerados como "aglomeraciones urbanas" en virtud de los reglamentos relativos a la circulación vial, se prohibirá cualquier clase de anuncio publicitario salvo en las áreas denominadas "zonas de publicidad autorizada".
Sin perjuicio de lo dispuesto en el artículo L. 581-4, podrán preverse estas zonas en las proximidades inmediatas de los establecimientos comerciales e industriales, centros artesanales y bloques de viviendas.
Estas zonas serán definidas con arreglo a las condiciones previstas por el artículo L. 581-14 y la publicidad en dichas zonas estará sometida a lo estipulado en las actas de constitución de las mismas.
Subsección 3 Anuncios publicitarios dentro de las aglomeraciones urbanas Artículos L581-8 a
L581-13
Artículo L581-8 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
I. - Dentro de las aglomeraciones urbanas, se prohibirán los anuncios publicitarios: 1° En las zonas de protección delimitadas en torno a los espacios naturales clasificados o a los monumentos
históricos clasificados; 2° En los sectores protegidos; 3° En los parques naturales regionales. Esta prohibición cesará cuando se establecieran zonas de publicidad restringida. II. - Los anuncios publicitarios quedarán igualmente prohibidos: 1° En los espacios protegidos incluidos en el inventario y en las zonas de protección delimitadas en torno a los
mismos; 2° A menos de 100 metros y en el campo de visibilidad de los inmuebles catalogados como monumentos
históricos, incluidos en el inventario suplementario o contemplados en el punto II del artículo L. 581-4; 3° En las zonas de protección del patrimonio arquitectónico, urbano y paisajístico. Esta prohibición cesará cuando se establecieran zonas de publicidad restringida o sectores que estuvieran sujetos
al régimen general establecido en el artículo L. 581-9. Excepcionalmente, esta prohibición cesará, en las condiciones establecidas por decreto adoptado en Conseil
d'Etat, cuando se estableciera una zona de publicidad ampliada donde la misma fuera un elemento determinante para la promoción de los correspondientes lugares.
Los sectores sujetos al régimen general serán establecidos con arreglo al procedimiento definido en el artículo L. 581-14.
III. - En caso de aplicarse las prohibiciones contempladas en los puntos I y II del presente artículo, el Alcalde podrá autorizar, en las vallas de obras, los carteles informativos y anuncios relativos a las actividades de las asociaciones mencionados en el artículo L. 581-13, con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
IV.- Los anuncios publicitarios no podrán cubrir parcial o totalmente vanos. No obstante, esta prohibición cesará cuando se tratara de fachadas pertenecientes a establecimientos cerrados temporalmente para su restauración, o como consecuencia de un procedimiento de suspensión de pagos o liquidación judicial, o cuando se hubiera previsto en una o varias zonas sujetas a regulación especial con arreglo al procedimiento establecido en el artículo L. 581-14.
Artículo L581-9 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Sin perjuicio de lo dispuesto en los artículos L. 581-4, se admitirán anuncios publicitarios en las aglomeraciones urbanas. No obstante, estos deberán cumplir, especialmente en materia de emplazamiento, superficie, altura y conservación, con las normas establecidas por decreto adoptado en Conseil d'Etat en función de los procedimientos, los dispositivos utilizados, las características de los soportes y la importancia de estas aglomeraciones urbanas. El decreto precisará igualmente las condiciones en que podrá utilizarse el mobiliario urbano como soporte publicitario en el dominio público.
La instalación de dispositivos publicitarios luminosos diferentes de carteles iluminados por proyección o transparencia, estará sujeta a autorización del Alcalde.
Artículo L581-10 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Con arreglo al procedimiento establecido en el artículo L. 581-14, podrá crearse en todo o parte de una aglomeración urbana, zonas de publicidad restringida o zonas de publicidad ampliada, en las que la publicidad esté sujeta a una regulación especial prevista en las actas de constitución de dichas zonas.
Artículo L581-11 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
I. - El acta de constitución de un área de publicidad restringida someterá los anuncios publicitarios en la misma a prescripciones más restrictivas que las del régimen establecido en el artículo L. 581-9.
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CÓDIGO DE MEDIO AMBIENTE II. - Podrá, asimismo: 1° Determinar las condiciones y los emplazamientos en los que únicamente se admitirán anuncios publicitarios; 2° Prohibir anuncios publicitarios o determinadas categorías de los mismos en función de los procedimientos y
dispositivos utilizados. III. - Sin embargo, no podrán ser prohibidos los anuncios publicitarios colocados en vallas de obras, salvo cuando
estas últimas estuvieran implantadas en los lugares citados en los apartados 1º y 2º del punto I del artículo L. 581-8. IV. - Las zonas de publicidad restringida deberán prever uno o varios emplazamientos publicitarios de los citados
en el artículo L. 581-13, con arreglo a las condiciones establecidas por el decreto citado en dicho artículo.
Artículo L581-12 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
El acta de constitución de una zona de publicidad ampliada someterá los anuncios publicitarios en dicha zona a prescripciones menos restrictivas que las del régimen establecido en el artículo L. 581-9.
Artículo L581-13 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Sin perjuicio de lo dispuesto en el presente capítulo, Alcalde establecerá mediante ordenanza los emplazamientos publicitarios previstos sobre el suelo o sobre los terrenos de dominio público o privado municipal, destinados a la colocación de carteles informativos y anuncios publicitarios reservados a actividades de asociaciones sin ánimo de lucro. La colocación de estos carteles o anuncios publicitarios estará exenta de cualquier tasa o gravamen.
Para garantizar la libertad de expresión y satisfacer las necesidades de las asociaciones, las condiciones de aplicación del presente artículo serán establecidas por decreto adoptado en Conseil d'Etat en función del número de habitantes y de la superficie del municipio. Este decreto definirá la superficie mínima que cada categoría de municipio deberá reservar para los anuncios publicitarios definidos en el párrafo anterior.
Si en el plazo de seis meses desde la entrada en vigor de este decreto el Alcalde no hubiera dictado la ordenanza a que se refiere el párrafo primero, el Prefecto, tras el correspondiente requerimiento y transcurrido un plazo de tres meses, determinará los emplazamientos publicitarios que fueran necesarios. La orden prefectoral dejará de aplicarse a partir del momento en que entrara en vigor una ordenanza municipal que determinara nuevos emplazamientos publicitarios.
Subsección 4 Procedimiento de constitución de zonas de publicidad autorizada, de
publicidad restringida y de publicidad ampliada Artículo L581-14
Artículo L581-14 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
I. - La delimitación de las zonas de publicidad autorizada, de las zonas de publicidad restringida y de las zonas de publicidad ampliada, así como las disposiciones que se tengan que cumplir en estas áreas, serán establecidas a petición del Consejo Municipal.
El proyecto de reglamentación especial será preparado por un grupo de trabajo cuya composición será establecida por orden prefectoral. Estará presidido por el Alcalde quien, en calidad de presidente, dispondrá de un voto de calidad. Estará formado, a partes iguales, por miembros del Consejo Municipal y, eventualmente, por un representante de la asamblea deliberante del organismo intermunicipal competente en materia de urbanismo por una parte y, por otra, por representantes de los servicios del Estado. Las Cámaras de Comercio e Industria, las Cámaras Profesionales de Artesanía, las Cámaras Agrarias, las asociaciones locales de usuarios citadas en el artículo L. 121-8 del Código de Urbanismo, así como también los representantes de las profesiones directamente interesadas, nombrados en las condiciones establecidas por decreto adoptado en Conseil d'Etat, participarán con voz pero sin voto en este grupo de trabajo, si así lo hubieran solicitado.
El proyecto elaborado en estas condiciones será remitido a la Comisión Departamental competente en materia de espacios naturales para el correspondiente dictamen. Transcurrido el plazo de dos meses sin pronunciamiento expreso, se considerará que el dictamen es favorable.
El proyecto elaborado por el grupo de trabajo y aprobado por la Comisión Departamental competente en materia de espacios naturales será aprobado por el Alcalde previa deliberación del Consejo Municipal.
En caso de dictamen desfavorable por parte de la Comisión, o en caso de oposición por parte del Consejo Municipal, se procederá a una nueva deliberación del grupo de trabajo para tomar un acuerdo sobre un nuevo proyecto que presentará el Prefecto.
Si tras esta nueva deliberación, el Consejo Municipal se opusiera al proyecto eventualmente modificado que le hubiera presentado el Prefecto, o emitiera reservas, una orden prefectoral o, a solicitud del Alcalde, una orden ministerial establecerá la delimitación de las zonas así como las disposiciones aplicables a las mismas.
La delimitación de las zonas y las disposiciones aplicables a las mismas podrán ser modificadas con arreglo al procedimiento previsto para su establecimiento.
A falta de propuesta del Consejo Municipal, el Prefecto podrá constituir de oficio el grupo de trabajo previsto en el presente artículo, previa consulta con el Alcalde.
II. - Con el objeto de presentar un proyecto común, los municipios limítrofes, incluso si dependieran de varios departamentos, podrán constituir un solo grupo de trabajo, presidido por el Alcalde de uno de los municipios interesados, el cual, en calidad de presidente, dispondrá de un voto de calidad.
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CÓDIGO DE MEDIO AMBIENTE Sin perjuicio de las adaptaciones que fueren necesarias y que serán determinadas por decreto adoptado en
Conseil d'Etat, la composición y el funcionamiento del grupo de trabajo mencionado en el párrafo anterior, así como el procedimiento de delimitación de las zonas de publicidad autorizada, de las zonas de publicidad restringida y de las zonas de publicidad ampliada y de establecimiento de las normas aplicables en las mismas, se regirán por las disposiciones del párrafo I del presente artículo.
Subsección 5 Disposiciones especiales aplicables a determinadas modalidades de
anuncios publicitarios Artículos L581-15 a L581-17
Artículo L581-15 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Los anuncios publicitarios en los vehículos terrestres, acuáticos o aéreos podrán ser regulados, sujetos a autorización o prohibidos, en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
No obstante, las disposiciones del párrafo anterior no serán aplicables a los anuncios publicitarios relacionados con la actividad ejercida por el propietario o usuario de un vehículo, a condición de que este vehículo no sea utilizado o equipado para fines esencialmente publicitarios.
Artículo L581-16 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Los municipios podrán utilizar en su beneficio, como soporte de publicidad comercial o de anuncios gratuitos definidos en el artículo L. 581-13, las vallas de obra cuando para su instalación hubiera sido necesaria una autorización de ocupación de la vía pública.
Artículo L581-17 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Por decreto adoptado en Conseil d'Etat se establecerán las excepciones de cumplimiento de lo dispuesto en la presente sección, cuando la publicidad fuera realizada en aplicación de una disposición legal o reglamentaria o una resolución judicial, o cuando estuviera destinada a informar a los ciudadanos de determinados peligros u obligaciones de cumplimiento preceptivo en los citados lugares.
Sección III Rótulos y carteles de preseñalización Artículos L581-18 a
L581-20
Artículo L581-18 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Por decreto adoptado en Conseil d'Etat se establecerá las disposiciones generales relativas a la colocación y conservación de rótulos en función de los procedimientos utilizados, de la naturaleza de las actividades así como de las características de los inmuebles donde estas actividades se ejercieran y del carácter de los emplazamientos donde dichos inmuebles estuvieran ubicados.
Las actas de constitución de las zonas de publicidad autorizada, de las zonas de publicidad restringida y de las zonas de publicidad ampliada, podrán prever normas relativas a los rótulos.
El decreto a que se refiere el párrafo primero del presente artículo establecerá las condiciones en las que esta reglamentación pudiera adaptarse a las circunstancias locales, cuando no se hubiera aplicado lo dispuesto en el párrafo segundo.
En los inmuebles y lugares mencionados en los artículos L. 581-4 y L. 581-8, así como en las zonas de publicidad restringida, la instalación de un rótulo estará sujeta a autorización.
Los rótulos con haz de luz láser estarán sujetos a autorización del Prefecto.
Artículo L581-19 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Los carteles de preseñalización estarán sujetos a las disposiciones que regulan los anuncios publicitarios. Las disposiciones relativas a la declaración prevista en el artículo L. 581-6, serán aplicables a los carteles de
preseñalización en las condiciones establecidas por decreto adoptado en Conseil d'Etat, especialmente en cuanto a dimensiones.
Por decreto adoptado en Conseil d'Etat se establecerán los casos y las condiciones en los que la colocación de carteles de preseñalización no estará sujeta a lo dispuesto en el párrafo primero del presente artículo, cuando se tratara de señalar, bien actividades particularmente útiles para las personas que estuvieran en desplazamiento o vinculadas a servicios públicos o de urgencia, bien que se ejercieran en un lugar apartado de la vía pública, o bien que estuvieran relacionadas con empresas locales de fabricación y venta de productos de la tierra.
Artículo L581-20 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
I. - El decreto previsto en el artículo L. 581-18 determinará las condiciones en las que se podrá colocar temporalmente en los inmuebles rótulos que anuncien:
1° Operaciones excepcionales que afectaran dichos inmuebles o que estuvieran relacionadas con actividades que se ejercieran dentro del mismo;
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CÓDIGO DE MEDIO AMBIENTE 2° Manifestaciones excepcionales de carácter cultural o turístico que se estuvieran celebrando o se fueran a
celebrar. II. - El decreto previsto en el artículo L. 581-19 determinará las condiciones en las que se podrá colocar
temporalmente carteles de preseñalización que indiquen la proximidad de los inmuebles mencionados en el punto I. III. - El decreto previsto en el artículo L. 581-19 determinará las condiciones en las que se podrán colocar carteles
de preseñalización que indiquen la proximidad de monumentos históricos, catalogados o incluidos en el inventario suplementario y abiertos al público.
Sección IV Disposiciones comunes Artículos L581-21 a
L581-24
Artículo L581-21 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Las autorizaciones previstas en las secciones 2 y 3 del presente capítulo serán concedidas en nombre del Estado. Su denegación deberá ser motivada.
Por decreto adoptado en Conseil d'Etat se establecerá el plazo a la expiración del cual la ausencia de notificación de la decisión de la autoridad competente equivaldrá al otorgamiento de la autorización. Este plazo no podrá exceder de dos meses a partir de la recepción de la solicitud.
El plazo podrá ser ampliado a cuatro meses para las autorizaciones relativas a la colocación de rótulos en un inmueble catalogado como monumento histórico o incluido en el inventario suplementario, así como en un espacio natural clasificado o en un sector protegido.
Artículo L581-22 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Cuando la Comisión Departamental competente en materia de espacios naturales fuera consultada según lo dispuesto en el presente capítulo, incorporará a representantes del municipio y de las profesiones interesadas, en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L581-23 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Los textos y documentos que recojan las normas reguladoras de carteles anunciadores en el municipio estarán a disposición pública en el ayuntamiento.
Artículo L581-24 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
No se podrán colocar anuncios publicitarios ni instalar carteles de preseñalización en un inmueble sin la autorización por escrito de su propietario.
Sección V Contratos de arrendamiento de emplazamiento publicitario Artículo L581-25
Artículo L581-25 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
El contrato de arrendamiento de emplazamiento publicitario privado para colocar anuncios publicitarios o carteles de preseñalización se realizará por escrito. Se concluirá por un período que no podrá exceder de seis años a partir de su firma. Podrá ser renovado tácitamente por períodos de duración máxima de un año, salvo denuncia por una de las partes al menos tres meses antes de su expiración.
El arrendatario tendrá que mantener el emplazamiento arrendado en buen estado de conservación. En caso de que no cumpliera esta obligación, el arrendador podrá pedir ante el Juez de procedimientos sumarios y previo requerimiento una vez transcurrido el plazo de un mes, o bien la ejecución de los trabajos que fueren necesarios, o bien la resolución del contrato y la restauración del lugar por cuenta del arrendatario, a su elección.
En caso de impago del precio del alquiler, el contrato será rescindido de pleno derecho a favor del arrendador, transcurrido un mes desde el requerimiento de pago sin respuesta alguna.
El arrendatario tendrá que proceder a la reposición del emplazamiento arrendado a su estado anterior, en el plazo de tres meses a partir de la expiración del contrato.
El contrato deberá incluir el tenor de los cuatro párrafos anteriores. Las disposiciones recogidas en el presente artículo son de orden público.
Sección VI Sanciones Artículos L581-26 a
L581-45
Subsección 1 Procedimiento administrativo Artículos L581-26 a
L581-33
Artículo L581-26
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CÓDIGO DE MEDIO AMBIENTE (Disposición nº 2000-914 de 18 de septiembre de 2000 art. 12 3° Diario Oficial de 21 de septiembre de 2000 con entrada en vigor el 1 de enero de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Sin perjuicio de lo dispuesto en los artículos L. 581-30 y L. 581-34, será sancionado con una multa de 750 euros el que colocare o hiciere colocar un dispositivo o material citado en el artículo L. 581-6, sin una previa declaración o sin ser conforme a ésta. El incumplimiento será comprobado mediante un atestado realizado por un funcionario o agente mencionado en el artículo L. 581-40. Se remitirá copia del atestado al infractor. Una vez acreditado el incumplimiento, el Prefecto impondrá una multa, que será recaudada de conformidad con las disposiciones relativas a los ingresos municipales, en beneficio del municipio en cuyo territorio se hubiera cometido la infracción. El infractor podrá consultar el expediente y podrá presentar sus alegaciones por escrito, dentro del plazo de un mes, sobre la propuesta de sanción de la Administración. La decisión del Prefecto, que deberá ser motivada, será susceptible de recurso de plena jurisdicción.
Lo dispuesto en el presente artículo será de aplicación en caso de infracción a lo dispuesto en los artículos L. 581-4, L. 581-5 y L. 581-24.
Artículo L581-27 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Desde que se comprobara la irregularidad de un anuncio publicitario, rótulo o cartel de preseñalización por no cumplir con lo dispuesto en el presente capítulo o en los reglamentos dictados para su aplicación, y a pesar de la prescripción de la infracción o de su amnistía, el Alcalde o el Prefecto adoptará una resolución ordenando, en el plazo de quince días, bien la eliminación del anuncio publicitario, del rótulo o del cartel de preseñalización objeto de la acusación, bien su adecuación a estas disposiciones, así como también, en su caso, la restauración del lugar.
Esta resolución será notificada a la persona que hubiera colocado, que hubiera hecho colocar o que hubiera mantenido, tras el requerimiento, el anuncio publicitario, rótulo o cartel de preseñalización irregular.
Si no se conociera el autor de estos actos, la resolución será notificada a la persona por cuenta de la cual se hubieran realizado estos anuncios publicitarios, rótulos o carteles de preseñalización.
Artículo L581-28 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
En caso de que la declaración mencionada en el artículo L. 581-6 desvelara que el dispositivo objeto de la misma no fuera conforme a las disposiciones legales y reglamentarias, el Alcalde o el Prefecto dictará una resolución requiriendo al declarante para que en el plazo de quince días a partir de la notificación de resolución, retire dicho dispositivo o subsane sus irregularidades. Al término de dicho plazo y en caso de incumplimiento, se aplicará al declarante una sanción pecuniaria con arreglo a las condiciones previstas por el artículo L. 581-30.
Artículo L581-29 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Desde que se comprobara la irregularidad de un anuncio publicitario por incumplimiento de lo dispuesto en los artículo L. 581-4, L. 581-5 o L. 581-24, el Alcalde o el Prefecto podrá ordenar que se proceda de oficio a la eliminación inmediata de dicho anuncio publicitario. No obstante, si este anuncio publicitario estuviera colocado en o sobre una propiedad privada, la ejecución de oficio estaría supeditada a la solicitud del propietario o a su información previa por parte de la autoridad administrativa. Los gastos de ejecución de oficio serán por cuenta de la persona que hubiera colocado o hecho colocar este anuncio publicitario. Si no se conociera al autor de estos actos, los gastos correrán por cuenta de la persona para quién se hubiera realizado el anuncio publicitario.
Artículo L581-30 (Disposición nº 2000-914 de 18 de septiembre de 2000 art. 12 4° Diario Oficial de 21 de septiembre de 2000 con entrada en vigor el 1 de enero de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Transcurrido el plazo de quince días desde la notificación de la resolución, se aplicará al destinatario de la notificación una sanción pecuniaria de 84,61 (1) euros por día y por anuncio publicitario, rótulo o cartel de preseñalización que mantuviera colocado. Este importe será revisado anualmente, en función de la evolución del coste de la vida, en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
La sanción pecuniaria no será de aplicación a los carteles informativos ni a los anuncios relativos a las actividades de las asociaciones, mencionados en el artículo L. 581-13, salvo cuando estos carteles informativos o estos anuncios hubieran sido colocados en un emplazamiento publicitario prohibido en ejecución de un contrato concluido entre el titular de la explotación de este emplazamiento y la persona por cuenta de la cual hubieran sido realizadas.
La sanción pecuniaria será recaudada en las condiciones establecidas por las disposiciones relativas a los ingresos municipales, en beneficio del municipio en cuyo territorio se hubiera cometido la infracción. Si el Alcalde no hubiera procedido a liquidar el importe de la sanción pecuniaria, a establecer el estado de cuenta necesario para su recaudación y a remitirlo al Prefecto en el mes siguiente a la solicitud de éste, el crédito será liquidado y recaudado en beneficio del Estado.
El Alcalde o el Prefecto, previo informe del Alcalde, podrá conceder un descuento o una devolución parcial del
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CÓDIGO DE MEDIO AMBIENTE importe de la sanción pecuniaria cuando los trabajos prescritos por la resolución hubieran sido ejecutados y cuando el deudor demostrara que no ha podido cumplir el plazo impuesto para la ejecución total de sus obligaciones por circunstancias ajenas a su voluntad.
NOTA: (1) Para el año 2004, el importe de la sanción pecuniaria será fijado en 85,80 euros en aplicación del índice INSEE (Instituto Nacional de Estadísticas y Estudios Económicos) publicado en el Diario Oficial de la República Francesa de 28 de febrero de 2004.
Para el año 2005, el importe de la sanción pecuniaria será fijado en 87,15 euros en aplicación del índice INSEE (Instituto Nacional de Estadísticas y Estudios Económicos) publicado en el Diario Oficial de la República Francesa de 26 de febrero de 2005.
Artículo L581-31 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 20°º Diario Oficial de 3 de julio de 2003) (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Sin perjuicio de la aplicación de las disposiciones recogidas en el artículo L. 581-30, el Alcalde o el Prefecto pedirá, con independencia del lugar de que se trate, la ejecución de oficio de los trabajos ordenados por la resolución a que se refiere el artículo L. 581-27, si no se hubieran ejecutado en el plazo fijado en dicha resolución.
Los gastos de ejecución de oficio correrán a cargo de la persona a la que le hubiera sido notificada la resolución, salvo si la ejecución de esta resolución hubiera sido suspendida por el Juez de procedimientos sumarios del Tribunal Administrativo.
La Administración tendrá que notificar la fecha de inicio de los trabajos a la persona privada propietaria u ocupante del lugar, con al menos ocho días de antelación.
Artículo L581-32 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Cuando un anuncio publicitario o un cartel de preseñalización incumpliera lo dispuesto en el presente capítulo o en los reglamentos dictados para su aplicación, el Alcalde o el Prefecto deberán hacer uso de las competencias conferidas por el artículo L. 581-27, a petición de las asociaciones mencionadas en el artículo L. 141-1 o del propietario del inmueble en el que, sin su consentimiento, se hubiera colocado el anuncio publicitario o el cartel de preseñalización.
Artículo L581-33 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
El Alcalde o el Prefecto, según los casos, remitirá al Fiscal de la República una copia del requerimiento a que se refiere el artículo L. 581-27 y le informará inmediatamente del seguimiento y trámite que se le hubiera dado.
Subsección 2 Sanciones penales Artículos L581-34 a
L581-45
Artículo L581-34 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 22º Diario Oficial de 3 de julio de 2003) (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
I. - Será sancionado con una multa de 3.750 euros el que colocare, hiciere colocar o mantuviere, tras requerimiento previo, un anuncio publicitario, un rótulo o un cartel de preseñalización:
1° En los lugares, emplazamientos o con arreglo a procedimientos prohibidos en aplicación de los artículos L. 581-4, L. 581-7, L. 581-8, L. 581-15, L. 581-18 y L. 581-19;
2° Sin haber obtenido las autorizaciones previas contempladas en las secciones 2 y 3 del presente capítulo o sin haber cumplido las condiciones establecidas en dichas autorizaciones, o sin haber procedido a la declaración previa contemplada en el artículo L. 581-6 o tras haber entregado una declaración falsa;
3° Sin haber cumplido, en las zonas de publicidad restringida, las disposiciones especiales por las que se rige la publicidad en dichas zonas.
II. - Será castigado con las mismas penas el que permitiere la continuidad de un anuncio publicitario, rótulo o cartel de preseñalización más allá de los plazos establecidos en el artículo L. 581-43 para dar cumplimiento a un requerimiento, así como el que se opusiere a la ejecución de los trabajos de oficio contemplados en el artículo L. 581-31 o el que obstaculizare el cumplimiento de los controles o el ejercicio de las funciones de los agentes a quienes se refiere el artículo L. 581-40.
III - La multa será impuesta tantas veces como se coloquen anuncios publicitarios, rótulos o carteles de preseñalización infringiendo las correspondientes disposiciones.
Artículo L581-35 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Será castigado con las mismas penas que el infractor aquel por cuya cuenta se realizare la publicidad, cuando dicho anuncio o dispositivo publicitario no contuviera las menciones establecidas en el artículo L. 581-5 o cuando fueran inexactas o incompletas.
En el caso de publicidad de carácter electoral, la autoridad administrativa competente dirigirá un requerimiento a la persona por cuya cuenta hubiera sido realizada, ordenándole que proceda a su eliminación y a la restauración del lugar
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CÓDIGO DE MEDIO AMBIENTE en el plazo de dos días naturales. En caso de cumplimiento de lo ordenado en este requerimiento, no será de aplicación lo dispuesto en el párrafo anterior.
Artículo L581-36 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000 con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
En caso de condena, el Tribunal podrá ordenar la eliminación de los anuncios publicitarios, rótulos o carteles de preseñalización objeto de la infracción en un plazo que no podrá exceder de un mes, así como imponer una sanción pecuniaria de 7,5 a 75 euros por día de retraso, o su adecuación a las disposiciones que se hubieran incumplido, en el mismo plazo y bajo las mismas condiciones. Ordenará, en su caso, la restauración del lugar al estado anterior a la infracción. Podrá dictar la ejecución provisional de su resolución.
Artículo L581-37 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 21º Diario Oficial de 3 de julio de 2003) (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
El Tribunal sólo podrá revisar la sanción pecuniaria si el deudor demostrara que no pudo cumplir el plazo impuesto para la ejecución total de sus obligaciones por circunstancias ajenas a su voluntad. Dicha sanción será recaudada en las condiciones previstas por el párrafo tercero del artículo L. 581-30.
Artículo L581-38 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
La prescripción de la acción pública se computará a partir del día en que el anuncio publicitario, el rótulo o el cartel de preseñalización objeto de la infracción a las disposiciones del presente capítulo y a los reglamentos dictados para su aplicación, hubiera sido eliminado o adecuado a las disposiciones a las que hubiera infringido.
Artículo L581-39 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Las disposiciones de los artículos L. 581-35, L. 581-36, L. 581-37 y L. 581-38 y las normas relativas a la complicidad serán aplicables a las faltas cometidas contra las disposiciones reglamentarias adoptadas en la aplicación del presente capítulo.
Artículo L581-40 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
I. - Para la aplicación de los artículos L. 581-27, L. 581-34 y L. 581-39, estarán habilitados para proceder a la comprobación de cualquier infracción, además de los funcionarios de la policía judicial:
1° Los agentes de la policía judicial mencionados en los artículos 20 y 21 del Código de Proceso Penal; 2° Los funcionarios y agentes habilitados para comprobar las infracciones a la Ley de 31 de diciembre de 1913
relativa a los monumentos históricos y al título IV del libro III del presente Código; 3° Los funcionarios y agentes habilitados para comprobar las infracciones a las disposiciones del Código de
Seguridad Vial; 4° Los funcionarios y agentes públicos habilitados para comprobar las infracciones a lo dispuesto en el Código de
Urbanismo; 5° Los ingenieros de puentes y caminos, los ingenieros de obras públicas del Estado y los agentes de los servicios
de puertos marítimos nombrados a estos efectos; 6° Los agentes habilitados por las entidades locales para comprobar las infracciones a lo dispuesto en el Código de
la Circulación en materia de parada y estacionamiento de los vehículos automóviles, en virtud del artículo L. 24 de dicho Código.
II. - Los agentes y funcionarios arriba mencionados habilitados para comprobar las infracciones remitirán sus atestados de comprobación al Fiscal de la República, al Alcalde y al Prefecto.
Artículo L581-41 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Las multas impuestas en aplicación de los artículos L. 581-34 y L. 581-35 serán incrementadas en un 50% en beneficio de las entidades locales. Su ingreso constituirá uno de los recursos financieros del comité de finanzas locales, establecido por el artículo L. 1211-1 del Código General de Entidades Territoriales.
Artículo L581-42 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Lo dispuesto en la presente sección no se aplicará ni a los carteles informativos ni a los anuncios relacionados con las actividades de las asociaciones, mencionados en el artículo L. 581-13, cuando el Alcalde o el Prefecto no hubiera previsto ni hecho instalar los emplazamientos publicitarios a que se refiere el citado artículo.
Artículo L581-43 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Los anuncios publicitarios, rótulos y carteles de preseñalización que se hubieran instalado antes de la entrada en vigor de los actos administrativos dictados en aplicación de los artículos L. 581-4, párrafo penúltimo, L. 581-7, L. 581-8, L. 581-10 y L. 581-18, párrafos segundo y tercero, y que no estuvieran en conformidad con su regulación, así como los anuncios publicitarios, los rótulos y los carteles colocados en los lugares que se hubieran incorporado al ámbito de
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CÓDIGO DE MEDIO AMBIENTE aplicación de los artículos L. 581-4, L. 581-8 y L. 581-44 en virtud de actos posteriores a su instalación, podrán ser mantenidos a condición de no infringir lo dispuesto en la reglamentación anteriormente citada durante un plazo de dos años a partir de la entrada en vigor de los actos arriba citados.
Los anuncios publicitarios, los rótulos y carteles de preseñalización que estuvieran sujetos a autorización en virtud del presente capítulo y que hubieran sido instalados antes de la entrada en vigor de los reglamentos citados en el párrafo anterior, podrán mantenerse durante un plazo de dos años a partir de la decisión de la autoridad administrativa competente que ordenara la eliminación o modificación, y a condición de no infringir lo dispuesto en la reglamentación anterior.
Artículo L581-44 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Los decretos adoptados en Conseil d'Etat a que se refieren los artículos L. 581-9 y L. 581-18 y, en su caso, los actos administrativos dictados en aplicación de los artículos L. 581-7 y L. 581-10, determinarán las normas dictadas en aplicación del Código de Urbanismo sobre la construcción, altura y aspecto de las edificaciones, así como sobre el modo de cercado de las propiedades inmobiliarias, que fueran aplicables en virtud de la presente Ley a la instalación de los dispositivos mencionados en el párrafo segundo del artículo L. 581-3, de los rótulos y de los carteles de preseñalización.
Determinarán asimismo las condiciones de aplicación de las disposiciones relativas a los anuncios publicitarios, rótulos y carteles de preseñalización que figuren en el reglamento adjunto a un plan de protección y revalorización hecho público o aprobado.
Con objeto de garantizar el cumplimiento de las normas y disposiciones recogidas en los dos párrafos anteriores, por decreto adoptado en Conseil d'Etat se definirán los casos y condiciones en los que estarán sujetos a autorización previa el anclaje al suelo o la instalación directa sobre el mismo de anuncios publicitarios, dispositivos mencionados en el párrafo segundo del artículo L. 581-3, rótulos y carteles de preseñalización.
Artículo L581-45 (Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 1° Diario Oficial de 14 de noviembre de 2004)
Capítulo II Prevención de la contaminación visual Artículo L582-1
Artículo L582-1 (introducido por la Disposición nº 2004-1199 de 12 de noviembre de 2004 art. 1 2° Diario Oficial de 14 de noviembre de 2004)
La instalación de nuevas líneas eléctricas aéreas con una tensión inferior a 63.000 voltios quedará prohibida a partir del 1 de enero de 2000 en las zonas de densa población definidas por decreto adoptado en Conseil d'Etat.
Cuando por necesidades técnicas imperativas o restricciones topográficas resultara imposible el soterramiento, o cuando se estimara que el impacto de dicho soterramiento fuera mayor que el de un tendido de línea aérea, podrá establecerse una excepción a esta prohibición por orden conjunta de los Ministros competentes en materia de Energía y Medio Ambiente.
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente capítulo.
LIBRO VI Disposiciones aplicables en Nueva Caledonia, en la Polinesia francesa, en las Islas Wallis y Futuna, en las Tierras australes y antárticas francesas y en Mayotte
Artículos L611-1 a L640-3
Título I Disposiciones aplicables en Nueva Caledonia Artículos L611-1 a
L614-1
Capítulo I Autorización y acciones judiciales de las asociaciones de protección del medio
ambiente Artículos L611-1 a L611-4
Artículo L611-1 Las asociaciones legalmente registradas que llevaran ejerciendo sus actividades estatutarias durante un periodo de
al menos tres años en el ámbito de la protección de la naturaleza, la mejora de la calidad de vida, la protección del agua, del aire, de los suelos, de los espacios naturales y paisajes, del urbanismo, o que tuvieran por objeto la lucha contra la contaminación y sus consecuencias y, en general todas aquellas que actuaran principalmente en favor de la protección del medio ambiente, podrán ser autorizadas mediante resolución motivada.
Estas asociaciones se denominarán "asociaciones autorizadas de protección del medio ambiente". Dicha autorización será concedida en las condiciones establecidas por decreto adoptado en Conseil d'Etat. Podrá
ser revocada cuando la asociación dejara de cumplir con las condiciones que justificaron su concesión. Las decisiones adoptadas en aplicación del presente artículo podrán ser objeto de un recurso
contencioso-administrativo de plena jurisdicción.
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CÓDIGO DE MEDIO AMBIENTE Artículo L611-2
Cualquier asociación que tuviera por objeto la protección de la naturaleza y del medio ambiente podrá instar una acción ante las jurisdicciones administrativas por cualquier perjuicio que tuviera relación con su objeto.
Toda asociación de protección del medio ambiente autorizada en virtud del artículo L.611-1 gozará de interés legítimo para recurrir cualquier decisión administrativa que tuviera una relación directa con su objeto y sus actividades estatutarias y produjera efectos perjudiciales para el medio ambiente en todo o en parte del territorio dentro del cual estén autorizadas.
Artículo L611-3 Las asociaciones autorizadas mencionadas en el artículo L.611-1 podrán tener la condición de parte procesal
legítima respecto a los hechos que atentaran de modo directo o indirecto contra los intereses cuya defensa y representación les correspondiese y que constituyeran una infracción a las disposiciones relativas a la protección de la naturaleza y el medio ambiente, a la mejora de la calidad de vida, a la protección del agua, del aire, de los suelos, de los espacios naturales y los paisajes, al urbanismo o que tuvieran por objeto la lucha contra las contaminaciones y los daños.
Artículo L611-4 En los casos mencionados en el artículo L.611-3, cuando varias personas físicas identificadas hubieran sufrido
daños personales causados por la acción de una misma persona y con un origen común, toda asociación autorizada en virtud del artículo L.611-1 y a solicitud de al menos dos de las personas físicas afectadas, podrá incoar en su nombre la correspondiente acción de reparación de los daños ante la jurisdicción competente.
El mandato no podrá ser solicitado. Tendrá que ser dado por escrito por cada persona física afectada. En este caso, se considerará que toda persona física que hubiera dado su consentimiento para que se ejerciera
una acción ante una jurisdicción penal ejerce los derechos reconocidos a la parte civil según lo dispuesto en el Código de Proceso PenaL.No obstante, las comunicaciones y notificaciones serán dirigidas a la asociación.
La asociación que ejerciera una acción judicial en aplicación de lo dispuesto en los párrafos anteriores podrá constituirse en parte civil ante el juez de instrucción o el juzgado ordinario de la sede social de la empresa demandada o, en su defecto, del lugar de la primera infracción.
Capítulo II Aguas marinas y vías abiertas a la navegación marítima Artículos L612-1 a
L612-2
Artículo L612-1 (Disposición nº 2005-805 de 18 de julio de 2005 art. 18 II Diario Oficial de 19 de julio de 2005)
Lo dispuesto en los artículos L. 218-1 a L. 218-72, con excepción del punto II del artículo L. 218-44, será de aplicación en Nueva Caledonia, sin perjuicio de las competencias atribuidas a Nueva Caledonia y a las provincias respecto de sus aguas territoriales.
Artículo L612-2 (Disposición nº 2005-805 de 18 de julio de 2005 art. 18 III Diario Oficial de 19 de julio de 2005)
En el caso de que no existieran administradores de asuntos marítimos, oficiales de puertos y oficiales de puertos adjuntos, las competencias que les fueran atribuidas por las disposiciones mencionadas en el punto I del artículo L. 612-1 serán ejercidas por el representante del Estado o por uno de sus representantes.
Capítulo III La Antártida Artículo L613-1
Artículo L613-1 (Introducido por la Ley nº 2003-347 de 15 de abril de 2003 art. 2 Diario Oficial de 16 de abril de 2003)
Lo dispuesto en los artículos L.711-1 a L.713-9 será de aplicación en Nueva Caledonia.
Capítulo IV Otras disposiciones Artículo L614-1
Artículo L614-1 (Introducido por la Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 23º Diario Oficial de 3 de julio de 2003)
Lo dispuesto en los artículos L.229-1 a L.229-4 será de aplicación en Nueva Caledonia.
Título II Disposiciones aplicables en la Polinesia francesa Artículos L622-1 a
L624-1
Capítulo I Autorización y acciones judiciales de las asociaciones de protección del medio
ambiente
Capítulo II
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CÓDIGO DE MEDIO AMBIENTE Aguas marinas y vías abiertas a la navegación marítima Artículos L622-1 a
L622-2
Artículo L622-1 (Disposición nº 2005-805 de 18 de julio de 2005 art. 18 II Diario Oficial de 19 de julio de 2005)
Lo dispuesto en los artículos L. 218-1 a L. 218-72, con excepción del punto II del artículo L. 218-44, será de aplicación en la Polinesia Francesa, sin perjuicio de las competencias atribuidas al territorio respecto de sus aguas territoriales.
Artículo L622-2 (Disposición nº 2005-805 de 18 de julio de 2005 art. 19 III Diario Oficial de 19 de julio de 2005)
En el caso de que no existieran administradores de asuntos marítimos, oficiales de puertos y oficiales de puertos adjuntos, las competencias que les fueran atribuidas por las disposiciones mencionadas en el punto I del artículo L. 622-1 serán ejercidas por el representante del Estado o por uno de sus representantes.
Capítulo III La Antártida Artículo L623-1
Artículo L623-1 (Introducido por la Ley nº 2003-347 de 15 de abril de 2003 art. 2 Diario Oficial de 16 de abril de 2003)
Lo dispuesto en los artículos L.711-1 a L.713-9 será de aplicación en la Polinesia francesa.
Capítulo IV Otras disposiciones Artículo L624-1
Artículo L624-1 (Introducido por la Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 24º Diario Oficial de 3 de julio de 2003)
Lo dispuesto en los artículos L.229-1 a L.229-4 será de aplicación en la Polinesia francesa.
Título III Disposiciones aplicables en las Islas Wallis y Futuna Artículos L631-1 a
L635-1
Capítulo I Autorización y acciones judiciales de las asociaciones de protección del medio
ambiente Artículo L631-1
Artículo L631-1 Las asociaciones legalmente registradas que llevaran ejerciendo sus actividades estatutarias durante un periodo de
al menos tres años en el ámbito de la protección de la naturaleza, la mejora de la calidad de vida, la protección del agua, del aire, de los suelos, de los espacios naturales y paisajes, del urbanismo, o que tuvieran por objeto la lucha contra las contaminaciones y los perjuicios y, en general, aquellas que actuaran principalmente en favor de la protección del medio ambiente, podrán ser autorizadas mediante resolución motivada.
Estas asociaciones se denominarán "asociaciones autorizadas de protección del medio ambiente". Dicha autorización será concedida en las condiciones establecidas por decreto adoptado en Conseil d'Etat. Podrá
ser revocada cuando la asociación dejara de cumplir con las condiciones que justificaron su concesión. Las decisiones adoptadas en aplicación del presente artículo podrán ser objeto de un recurso
contencioso-administrativo de plena jurisdicción.
Capítulo II Aguas marinas y vías abiertas a la navegación marítima Artículos L631-2 a
L632-2
Artículo L631-2 Cualquier asociación que tuviera por objeto la protección de la naturaleza y del medio ambiente podrá instar una
acción ante las jurisdicciones administrativas por cualquier perjuicio que tuviera relación con su objeto. Toda asociación de protección del medio ambiente autorizada en virtud del artículo L.631-1 gozará de interés
legítimo para recurrir cualquier decisión administrativa que tuviera una relación directa con su objeto y sus actividades estatutarias y produjera efectos perjudiciales para el medio ambiente en todo o en parte del territorio dentro del cual estén autorizadas.
Artículo L631-3 Las asociaciones autorizadas mencionadas en el artículo L.631-1 podrán tener la condición de parte procesal
legítima respecto a los hechos que atentaran de modo directo o indirecto contra los intereses cuya defensa y representación les correspondiese y que constituyeran una infracción a las disposiciones relativas a la protección de la naturaleza y el medio ambiente, a la mejora de la calidad de vida, a la protección del agua, del aire, de los suelos, de los espacios naturales y los paisajes, al urbanismo o que tuvieran por objeto la lucha contra las contaminaciones y los daños.
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CÓDIGO DE MEDIO AMBIENTE Artículo L631-4
En los casos mencionados en el artículo L.631-3, cuando varias personas físicas identificadas hubieran sufrido daños personales causados por la acción de una misma persona y con un origen común, toda asociación autorizada en virtud del artículo L.631-1 a solicitud de al menos dos de las personas físicas afectadas, podrá incoar en su nombre la correspondiente acción de reparación de los daños ante la jurisdicción competente.
El mandato no podrá ser objeto de solicitación. Tendrá que ser dado por escrito por cada persona física afectada. En este caso, se considerará que toda persona física que hubiera dado su consentimiento para que se ejerciera
una acción ante una jurisdicción penal, ejerce los derechos reconocidos a la parte civil según lo dispuesto en el Código de Proceso PenaL.No obstante, las comunicaciones y notificaciones serán dirigidas a la asociación.
La asociación que ejerciera una acción judicial en aplicación de lo dispuesto en los párrafos anteriores, podrá constituirse en parte civil ante el juez de instrucción o el juzgado ordinario de la sede social de la empresa demandada o, en su defecto, del lugar de la primera infracción.
Artículo L632-1 (Disposición nº 2005-805 de 18 de julio de 2005 art. 20 II Diario Oficial de 19 de julio de 2005)
Lo dispuesto en los artículos L. 218-1 a L. 218-72, con excepción del punto II del artículo L. 218-44, será de aplicación en Wallis y Futuna.
Artículo L632-2 (Disposición nº 2005-805 de 18 de julio de 2005 art. 20 III Diario Oficial de 19 de julio de 2005)
En el caso de que no existieran administradores de asuntos marítimos, oficiales de puertos y oficiales de puertos adjuntos, las competencias que les fueran atribuidas por las disposiciones mencionadas en el punto I del artículo L. 632-1 serán ejercidas por el representante del Estado o por uno de sus representantes.
Capítulo III Agua para consumo humano, aguas usadas y residuos, lucha contra los ruidos
producidos por los vecinos y contaminación atmosférica Artículo L633-1
Artículo L633-1 Las disposiciones especiales relativas a la calidad del agua para consumo humano, a la evacuación, al tratamiento,
a la eliminación y al aprovechamiento de las aguas usadas y de los residuos, a la lucha contra los ruidos producidos por los vecinos y la contaminación atmosférica de origen doméstico, se encuentran enunciadas en el artículo L.1523-2 del Código de Salud Pública.
Capítulo IV La Antártida Artículo L634-1
Artículo L634-1 (Introducido por la Ley nº 2003-347 de 15 de abril de 2003 art. 2 Diario Oficial de 16 de abril de 2003)
Lo dispuesto en los artículos L.711-1 a L.713-9 será de aplicación en las Islas Wallis y Futuna.
Capítulo V Otras disposiciones Artículo L635-1
Artículo L635-1 (Introducido por la Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 25º Diario Oficial de 3 de julio de 2003)
Lo dispuesto en los artículos L.229-1 a L.229-4 será de aplicación en las Islas Wallis y Futuna.
Título IV Disposiciones aplicables en las tierras australes y antárticas francesas
Título V Disposiciones aplicables en Mayotte Artículos L651-1 a
L640-3
Artículo L621-1 Las asociaciones legalmente registradas que llevaran ejerciendo sus actividades estatutarias durante un periodo de
al menos tres años en el ámbito de la protección de la naturaleza, la mejora de la calidad de vida, la protección del agua, del aire, de los suelos, de los espacios naturales y paisajes, del urbanismo, o que tuvieran por objeto la lucha contra las contaminaciones y los perjuicios y, en general, aquellas que actuaran principalmente en favor de la protección del medio ambiente, podrán ser autorizadas mediante resolución motivada.
Estas asociaciones se denominarán "asociaciones autorizadas de protección del medio ambiente". Dicha autorización será concedida en las condiciones establecidas por decreto adoptado en Conseil d'Etat. Podrá
ser revocada cuando la asociación dejara de cumplir las condiciones que justificaron su concesión. Las decisiones adoptadas en aplicación del presente artículo podrán ser objeto de un recurso
contencioso-administrativo de plena jurisdicción.
Artículo L621-2 Cualquier asociación que tuviera por objeto la protección de la naturaleza y del medio ambiente podrá instar una
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CÓDIGO DE MEDIO AMBIENTE acción ante las jurisdicciones administrativas por cualquier perjuicio que tuviera relación con su objeto.
Toda asociación de protección del medio ambiente autorizada en virtud del artículo L.621-1 gozará de interés legítimo para recurrir cualquier decisión administrativa que tuviera una relación directa con su objeto y sus actividades estatutarias y produjera efectos perjudiciales para el medio ambiente en todo o en parte del territorio dentro del cual estén autorizadas.
Artículo L621-3 Las asociaciones autorizadas mencionadas en el artículo L.621-1 podrán tener la condición de parte procesal
legítima respecto a los hechos que atentaran de modo directo o indirecto contra los intereses cuya defensa y representación les correspondiese y que constituyeran una infracción a las disposiciones relativas a la protección de la naturaleza y el medio ambiente, a la mejora de la calidad de vida, a la protección del agua, del aire, de los suelos, de los espacios naturales y los paisajes, al urbanismo o que tuvieran por objeto la lucha contra las contaminaciones y los daños.
Artículo L621-4 En los casos mencionados en el artículo L.621-3, cuando varias personas físicas identificadas hubieran sufrido
daños personales causados por la acción de una misma persona y con un origen común, toda asociación autorizada en virtud del artículo L.621-1 a solicitud de al menos dos de las personas físicas afectadas, podrá incoar en su nombre la correspondiente acción de reparación de los daños ante la jurisdicción competente.
El mandato no podrá ser objeto de solicitación. Tendrá que ser dado por escrito por cada persona física afectada. En este caso, se considerará que toda persona física que hubiera dado su consentimiento para que se ejerciera
una acción ante una jurisdicción penal, ejerce los derechos reconocidos a la parte civil según lo dispuesto en el Código de Proceso PenaL.No obstante, las comunicaciones y notificaciones serán dirigidas a la asociación.
La asociación que ejerciera una acción judicial en aplicación de lo dispuesto en los párrafos anteriores, podrá constituirse en parte civil ante el juez de instrucción o el juzgado ordinario de la sede social de la empresa demandada o, en su defecto, del lugar de la primera infracción.
Artículo L640-1 (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 26º Diario Oficial de 3 de julio de 2003) (Disposición nº 2005-805 de 18 de julio de 2005 art. 21 II Diario Oficial de 19 de julio de 2005)
I. - Lo dispuesto en los artículos L. 122-1 a L. 122-3, L. 141-1 a L. 142-3, L. 218-1 a L. 218-72, L. 229-1 a L. 229-4, L. 332-1 a L. 332-14, L. 332-16 a L. 332-27, L. 411-1 a L. 411-4 y L. 412-1 a L. 415-5 será de aplicación en las Tierras australes y antárticas francesas.
II. - Las competencias atribuidas al Prefecto por las disposiciones mencionadas en el punto I serán ejercidas por el representante del Estado.
III. - Las disposiciones relativas a la protección de los monumentos naturales y espacios naturales se encuentran recogidas en la Ley nº 56-1106 de 3 de noviembre de 1956, de protección de los lugares y monumentos de carácter histórico, científico, artístico o pintoresco, de catalogación de los objetos históricos, científicos o etnográficos y de regulación de las excavaciones en los territorios dependientes de Ministerio de la Francia de Ultramar.
Artículo L640-2 En el caso de que no existieran administradores de asuntos marítimos, oficiales de puertos y oficiales de puertos
adjuntos, las competencias que les fueran atribuidas por las disposiciones mencionadas en el punto I del artículo L.640-1 serán ejercidas por el Delegado del Gobierno de la República o por uno de sus representantes.
Artículo L640-3 (Introducido por la Ley nº 2003-347 de 15 de abril de 2003 art. 2 Diario Oficial de 16 de abril de 2003)
Lo dispuesto en los artículos L.711-1 a L.713-9 será de aplicación en las Tierras australes y antárticas francesas.
Capítulo I Disposiciones comunes Artículos L651-1 a
L651-7
Artículo L651-1 (Ley nº 2001-616 de 11 de julio de 2001 art. 51 I Diario Oficial de 13 de julio de 2001) (Disposición nº 2005-869 de 28 de julio de 2005 art. 2 Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
El presente Código será aplicable en Mayotte, sin perjuicio de las adaptaciones previstas en el presente título. Para la aplicación en Mayotte de las disposiciones del presente Código, se efectuarán las siguientes
modificaciones: 1° Las referencias al departamento, al departamento de ultramar o a la región serán sustituidas por la referencia a
la collectivité départementale de Mayotte; 2° La referencia a los Consejos Generales o al Consejo Regional será sustituida por la referencia al Consejo
General de Mayotte; 3° Los términos: "Presidente del Consejo Regional" serán sustituidos por los términos: "Presidente del Consejo
General"; 4° Los términos: "representante del Estado en el departamento", "Prefecto", "Prefecto de región" o "Prefecto
coordinador de cuenca" serán sustituidos por los términos: "representante del Estado en Mayotte";
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CÓDIGO DE MEDIO AMBIENTE 5° La referencia a la Dirección Departamental de Agricultura y Bosques será sustituida por la referencia a la
Dirección de Agricultura y Bosques; 6° Los términos: "administrador de asuntos marítimos" serán sustituidos por los términos: "jefe del servicio de
asuntos marítimos"; 7° Los términos: "Tribunal d'Instance" o "Tribunal de Grande Instance" serán sustituidos por los términos: "Tribunal
de Première Instance" 8° Los términos: "Cour d'Appel" serán sustituidos por los términos: "Tribunal Supérieur d'Appel". Las referencias a las disposiciones que no fueran aplicables en Mayotte serán sustituidas por las referencias a las
disposiciones localmente aplicables que tuvieran el mismo objeto.
Artículo L651-2 Las órdenes y las decisiones que fueran competencia de un Ministro en virtud de las disposiciones del presente
Código aplicables en Mayotte, serán adoptadas conjuntamente por este Ministro y el Ministro competente en materia de departamentos y territorios de Ultramar.
Artículo L651-3 (Disposición nº 2005-869 de 28 de julio de 2005 art. 3 Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Para la aplicación en Mayotte de las disposiciones de la Parte Legislativa del presente Código, que contempla una consulta pública, esta formalidad será sustituida por la puesta a disposición pública del expediente. Por orden del representante del Estado se precisarán especialmente el contenido del expediente puesto a disposición pública, la duración y las condiciones de dicha puesta a disposición.
Sin embargo, el representante del Estado en Mayotte podrá decidir someter a consulta pública determinadas categorías de trabajos, obras o construcciones que por su naturaleza, su importancia o su localización, fueran susceptibles de atentar contra el medio ambiente.
Artículo L651-4 (Ley nº 2001-616 de 11 de julio de 2001 art. 51 II Diario Oficial de 13 de julio de 2001) (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 19º Diario Oficial de 3 de julio de 2003) (Disposición nº 2005-869 de 28 de julio de 2005 art. 4 Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
I. - Lo dispuesto en los artículos L. 122-11, L. 151-1 y L. 151-2 no será de aplicación en Mayotte. II - Para la aplicación del artículo L. 132-2 en Mayotte, los términos: "y los centros regionales de la propiedad
forestal" serán suprimidos.
Artículo L651-5 (Disposición nº 2005-869 de 28 de julio de 2005 art. 5 I Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
I. - Por excepción a lo dispuesto en el punto I del artículo L. 122-3, las modalidades de aplicación de la primera sección del capítulo II del título II del libro I serán establecidas por orden del representante del Estado en Mayotte, con arreglo a las condiciones previstas en el punto II del mismo artículo.
II. - Por excepción a lo dispuesto en el párrafo primero del artículo L. 122-4, los planes, programas y demás documentos de planificación que debieran ser sometidos a una evaluación ambiental en las condiciones previstas por las disposiciones de la segunda sección del capítulo II del título II del libro I serán establecidos por orden del representante del Estado en Mayotte.
III. - Por orden del representante del Estado en Mayotte se precisarán, si fuera necesario, para cada una de las categorías de planes o documentos, las condiciones de aplicación de la segunda sección del capítulo II del título II del libro I.
Artículo L651-6 (Disposición nº 2005-869 de 28 de julio de 2005 art. 5 I Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Por excepción a lo dispuesto en el punto III del artículo L. 125-1, por orden del representante del Estado en Mayotte se establecerán las modalidades de ejercicio del derecho a la información previsto en dicho artículo, especialmente las modalidades con arreglo a las cuales la información se hará publica.
Artículo L651-7 (Disposición nº 2005-869 de 28 de julio de 2005 art. 5 I Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Por excepción a lo dispuesto en el párrafo quinto del artículo L. 126-1, la declaración de proyecto se publicará con arreglo a las condiciones establecidas por orden del representante del Estado en Mayotte.
Capítulo II Medios físicos Artículos L652-1 a
L652-8
Artículo L652-1 (Ley nº 2001-616 de 11 de julio de 2001 art. 51 III Diario Oficial de 13 de julio de 2001)
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CÓDIGO DE MEDIO AMBIENTE (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 27º Diario Oficial de 3 de julio de 2003) (Ley nº 2004-338 de 21 de abril de 2004 art. 9 II Diario Oficial de 22 de abril de 2004) (Disposición nº 2005-869 de 28 de julio de 2005 art. 6 I Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
I. - Lo dispuesto en los artículos L. 213-5 a L. 213-7 no será de aplicación en Mayotte. II. - En el caso de que no existieran administradores de asuntos marítimos, oficiales de puertos y oficiales de
puertos adjuntos, las competencias que les fueran atribuidas por las disposiciones mencionadas en el punto I serán ejercidas por el representante del Estado o por uno de sus delegados.
III. - Asimismo, serán de aplicación las disposiciones del Código de Salud Pública mencionadas en los artículos L. 211-11 y L. 214-14 del presente Código, en las condiciones indicadas en el artículo L. 1515-1 del Código de Salud Pública.
Artículo L652-2 (Disposición nº 2005-869 de 28 de julio de 2005 art. 6 II Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
El representante del Estado será el encargado de la conservación, la gestión y el ejercicio de las funciones de policía de aguas superficiales y subterráneas en el territorio de Mayotte.
Dictará las disposiciones necesarias para mantener la libre circulación y distribución de las aguas así como para proteger la seguridad y la salubridad pública.
Ejercerá las competencias conferidas a las autoridades administrativas del Estado para la aplicación de las disposiciones de los capítulos I a VII del título I del libro II.
Podrá dictar normas complementarias en materia de conservación, de gestión y de protección de las aguas con el objeto de proteger las aguas de la laguna, el litoral y el arrecife de coral contra la contaminación.
Artículo L652-3 (Disposición nº 2005-869 de 28 de julio de 2005 art. 6 III Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006) (Disposición nº 2005-869 de 28 de julio de 2005 art. 6 IV Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Para la aplicación de las disposiciones del título I del libro II, Mayotte constituirá una cuenca hidrográfica. El Comité de Cuenca de Mayotte ejercerá las competencias previstas en los artículos L/ 213-2 y L. 213-4. Se creará asimismo una Oficina del Agua que estará sujeta a lo dispuesto en los artículos L. 213-13 a L. 213-20.
Artículo L652-4 (introducido por la Disposición nº 2005-869 de 28 de julio de 2005 art. 6 IV Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Para la aplicación del artículo L. 213-13, la referencia al artículo L. 3241-1 del Código General de Entidades Territoriales será sustituida por la referencia al artículo L. 3554-1 del Código.
Artículo L652-5 (introducido por la Disposición nº 2005-869 de 28 de julio de 2005 art. 6 IV Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Por excepción a lo dispuesto en el párrafo primero del artículo L. 221-2, se deberá crear en Mayotte, antes del 1 de enero de 2010, un dispositivo de vigilancia de la calidad del aire y de sus efectos sobre la salud.
Artículo L652-6 (introducido por la Disposición nº 2005-869 de 28 de julio de 2005 art. 6 IV Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Para la aplicación de los artículos L. 222-2 y L. 222-4, la referencia a las comisiones departamentales competentes en materia de medio ambiente, riesgos sanitarios y tecnológicos será sustituida por la referencia al Consejo de Higiene de Mayotte.
Por excepción a lo dispuesto en el párrafo segundo del artículo L. 222-2, el plan para la calidad del aire será establecido por el representante del Estado.
Artículo L625-7 (introducido por la Disposición nº 2005-869 de 28 de julio de 2005 art. 6 IV Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Lo dispuesto en los artículos L. 229-5 a L. 229-19 será de aplicación en Mayotte solamente a partir del 1 de enero de 2012.
Artículo L652-8 (introducido por la Disposición nº 2005-869 de 28 de julio de 2005 art. 6 III Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Los agentes jurados nombrados por el representante del Gobierno estarán habilitados para comprobar las infracciones a las disposiciones del libro II del presente Código, siempre que sean aplicables en Mayotte.
Capítulo III
Fecha de actualización 10/04/2006 - Page 215/221
CÓDIGO DE MEDIO AMBIENTE Espacios naturales Artículos L653-1 a
L653-3
Artículo L653-1 (Ley nº 2001-616 de 11 de julio de 2001 art. 51 IV Diario Oficial de 13 de julio de 2001) (Disposición nº 2004-178 de 20 de febrero de 2004 art. 6 IV Diario Oficial de 24 de febrero de 2004) (Disposición nº 2005-869 de 28 de julio de 2005 art. 7 Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
I. - Lo dispuesto en los artículos L. 321-11, L. 321-12 y L. 333-4 no será de aplicación en Mayotte. II - Para la aplicación del artículo L. 321-2 en Mayotte, los términos: "de Francia metropolitana y de los
departamentos de ultramar" serán sustituidos por los términos: "de Mayotte". III. - Para la aplicación en Mayotte del artículo L. 341-20, tras los términos: "322-2 del Código Penal", serán
insertados los términos: "modificado por el artículo 724-1 del mismo Código para su aplicación en Mayotte". IV. - Para la aplicación en Mayotte del artículo L. 341-22, los términos: "legalmente clasificados antes del 2 de
mayor de 1930, de conformidad con las disposiciones de la Ley de 21 de abril de 1906 de organización de la protección de los lugares y monumentos naturales de carácter artístico" serán sustituidos por los términos: "legalmente protegidos antes de la promulgación de la Ley nº 2001-616 de 11 de julio de 2001 relativa a Mayotte, de conformidad con las disposiciones de la Ley nº 56-1106 de 3 de noviembre de 1956, de protección de los lugares y monumentos de carácter histórico, científico, artístico o pintoresco, de catalogación de los objetos históricos, científicos o etnográficos y de regulación de las excavaciones en los territorios dependientes de Ministerio de la Francia de Ultramar".
Artículo L653-2 (Disposición nº 2005-869 de 28 de julio de 2005 art. 8 I Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Estarán habilitados para comprobar las infracciones a las disposiciones del libro III del presente Código cometidas en la entidad territorial, además de los agentes mencionados en estas disposiciones, los agentes del servicio territorial de aguas y bosques nombrados por el representante del Gobierno.
Los hechos recogidos en sus atestados se presumirán ciertos, salvo prueba en contrario. Serán remitidos en los plazos establecidos en el libro III.
Artículo L653-3 (introducido por la Disposición nº 2005-869 de 28 de julio de 2005 art. 8 II Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Lo dispuesto en los puntos II y III del artículo L. 332-2 no será de aplicación en Mayotte. Las referencias a una decisión del Presidente del Consejo Regional en el artículo L. 332-6, a una autorización
especial del Consejo Regional en el artículo L. 332-9, o a un acuerdo del Consejo Regional en el artículo L. 332-10, carecerán de objeto en Mayotte.
Capítulo IV Fauna y flora Artículos L654-1 a
L654-9
Artículo L654-1 (Ley nº 2001-616 de 11 de julio de 2001 art. 51 V Diario Oficial de 13 de julio de 2001) (Disposición nº 2005-869 de 28 de julio de 2005 art. 9 I Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Lo dispuesto en los artículos L. 414-1, L. 414-7 y L. 436-1 a L. 463-3 no será de aplicación en Mayotte.
Artículo L654-2 (Ley nº 2001-616 de 11 de julio de 2001 art. 51 VI Diario Oficial de 13 de julio de 2001)
Teniendo en cuenta las particularidades de la situación local con respecto a los intereses mencionados en el artículo L.110-1, el representante del Estado podrá completar la lista a que se refiere el artículo L.412-1.
Artículo L654-3 (Ley nº 2001-616 de 11 de julio de 2001 art. 51 VI Diario Oficial de 13 de julio de 2001) (Disposición nº 2005-869 de 28 de julio de 2005 art. 9 II Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
El representante del Estado dictará las órdenes recogidas en los artículos L. 424-1 y L. 424-4.
Artículo L654-4 La fecha de 30 de junio de 1984 que figura en el artículo L.43-17 será sustituida por la fecha de 1 de enero de
1994.
Artículo L654-5 (Ley nº 2001-616 de 11 de julio de 2001 art. 51 VI Diario Oficial de 13 de julio de 2001)
Las listas contempladas en los artículos L.432-6 y L.432-10 serán establecidas por orden del representante del Estado.
Artículo L654-6
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CÓDIGO DE MEDIO AMBIENTE (Ley nº 2001-616 de 11 de julio de 2001 art. 51 VII Diario Oficial de 13 de julio de 2001) (Disposición nº 2005-869 de 28 de julio de 2005 art. 9 III Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Las personas que se dediquen a la práctica de la pesca tendrán que justificar su pertenencia bien a una asociación autorizada de pesca y piscicultura, o bien a una asociación autorizada de pescadores aficionados a la pesca con redes y aparejos en las aguas de dominio público, o bien a una asociación autorizada de pescadores profesionales.
Artículo L654-7 (Ley nº 2001-616 de 11 de julio de 2001 art. 51 VI Diario Oficial de 13 de julio de 2001)
Para la aplicación de los artículos L.436-5, L.436-11 y L.436-12, las condiciones de ejercicio del derecho de pesca serán determinadas por orden del representante del Estado.
Artículo L654-8 (Ley nº 2001-616 de 11 de julio de 2001 art. 51 VII Diario Oficial de 13 de julio de 2001)
Para la aplicación del artículo L.437-11, la venta de la pesca incautada se realizará en beneficio de la collectivité départementale de Mayotte.
Artículo L654-9 (Ley nº 2001-616 de 11 de julio de 2001 art. 51 VI, VII Diario Oficial de 13 de julio de 2001) (Disposición nº 2005-869 de 28 de julio de 2005 art. 9 IV Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Estarán habilitados para comprobar las infracciones a las disposiciones del libro IV del presente Código cometidas en la collectivité départementale de Mayotte, además de los agentes mencionados en estas disposiciones, los agentes de la Dirección de Agricultura y Bosques nombrados por el representante del Estado.
Los hechos recogidos en sus atestados se presumirán ciertos, salvo prueba en contrario. Serán remitidos en los plazos establecidos en el libro IV.
Capítulo V Prevención de las contaminaciones, de los riesgos y de los daños Artículos L655-1 a
L655-8
Artículo L655-1 (Ley nº 2001-616 de 11 de julio de 2001 art. 51 VIII Diario Oficial de 13 de julio de 2001) (Ley nº 2003-591 de 2 de julio de 2003 art. 31 III 28° Diario Oficial de 3 de julio de 2003) (Disposición nº 2005-869 de 28 de julio de 2005 art. 10 I Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Lo dispuesto en los artículos L. 541-32, L. 541-36 y L. 565-1 y L. 562-6 no será de aplicación en Mayotte.
Artículo L655-2 Para su aplicación en Mayotte, el párrafo tercero del artículo L.515-9 quedará redactado como sigue: "El proyecto de servidumbre y el perímetro será puesto a disposición pública y sometido al dictamen favorable de
los Consejos municipales de los municipios en cuyo territorio se sitúe dicho perímetro. "
Artículo L655-3 (Disposición nº 2005-869 de 28 de julio de 2005 art. 10 II Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006) (Disposición nº 2005-869 de 28 de julio de 2005 art. 10 III Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Para su aplicación en Mayotte, el párrafo tercero del artículo L. 515-11 quedará redactado como sigue: "El perjuicio será valorado en la fecha correspondiente a la resolución dictada en primera instancia. No obstante,
sólo se tendrá en cuenta el posible uso de los bienes inmuebles y derechos inmobiliarios durante el año anterior a la puesta a disposición pública contemplada en el artículo L. 515-9."
Lo dispuesto en los artículos L. 515-5 a L. 515-26 será de aplicación en Mayotte solamente a partir del 1 de enero de 2010.
Artículo L655-4 (Disposición nº 2005-869 de 28 de julio de 2005 art. 10 III Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006) (Disposición nº 2005-869 de 28 de julio de 2005 art. 11 I Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Para la aplicación del artículo L. 541-10-1 en Mayotte, los términos: "1 de enero de 2005" serán sustituidos por los términos: "1 de enero de 2010"
Artículo L655-5 (Disposición nº 2005-869 de 28 de julio de 2005 art. 10 II Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006) (Disposición nº 2005-869 de 28 de julio de 2005 art. 11 I Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Para la aplicación del artículo L. 541-13 en Mayotte, los apartados V, VI y VII serán sustituidos por los siguientes:
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CÓDIGO DE MEDIO AMBIENTE V. - El proyecto de plan será elaborado por iniciativa y bajo la responsabilidad del Estado. No obstante, esta
competencia será transferida al Consejo General a solicitud del mismo. VI. - El proyecto de plan será sometido al dictamen del Consejo General y al de una comisión formada por
representantes de las entidades territoriales, del Estado y de los organismos públicos interesados, de organizaciones profesionales que intervienen en la producción y eliminación de residuos y de asociaciones autorizadas de protección del medio ambiente.
VII. - El proyecto de plan, eventualmente modificado como consecuencia de los dictámenes del punto VI, será puesto a disposición pública durante dos meses, al término de los cuales será aprobado por el representante del Estado y publicado.
Artículo L655-6 (Disposición nº 2005-869 de 28 de julio de 2005 art. 10 II Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006) (Disposición nº 2005-869 de 28 de julio de 2005 art. 11 I Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Para la aplicación del artículo L. 541-14 en Mayotte, los apartados V a VIII serán sustituidos por los siguientes: V. - El proyecto de plan será elaborado por iniciativa y bajo la responsabilidad del Estado. No obstante, esta
competencia será transferida al Consejo General a solicitud del mismo. VI. - El proyecto de plan será establecido tras acuerdo aprobado en una Comisión Consultiva formada por
representantes de los municipios y de sus agrupaciones, de la collectivité départementale, del Estado, de los organismos públicos y de los profesionales interesados, así como de las asociaciones autorizadas de protección del medio ambiente.
VII.- El proyecto de plan será sometido al dictamen del Consejo General y al del Consejo de Higiene. VII. - El proyecto de plan, eventualmente modificado como consecuencia de los dictámenes formulados en
aplicación del punto VII, será puesto a disposición pública durante dos meses, al término de los cuales será aprobado por el representante del Estado.
Artículo L655-7 (Disposición nº 2005-869 de 28 de julio de 2005 art. 10 IV Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006) (Disposición nº 2005-869 de 28 de julio de 2005 art. 11 I Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Para la aplicación del artículo L. 551-2 en Mayotte, los términos: "en la fecha de publicación de la Ley nº 2003-699 de 30 de julio de 2003, relativa a la prevención de riesgos tecnológicos y naturales y a la reparación de los daños" serán sustituidos por los términos: "en la fecha de publicación de la Disposición n° 2005-869 de 28 de julio de 2005 relativa a la adaptación del derecho medioambiental en Mayotte" y los términos: "dentro del plazo máximo de tres años a partir de la entrada en vigor de dicha Ley" serán sustituidos por los términos: "antes del 31 de diciembre de 2008".
Por excepción a lo dispuesto en el último párrafo del mismo artículo, sus modalidades de aplicación, y especialmente las categorías de construcciones afectadas, serán establecidas por orden del representante del Estado en Mayotte.
Artículo L655-8 (Disposición nº 2005-869 de 28 de julio de 2005 art. 10 IV Diario Oficial de 29 de julio de 2005 con entrada en vigor el 1 de enero de 2006)
Los agentes jurados nombrados por el representante del Gobierno estarán habilitados para comprobar las infracciones a las disposiciones del libro V del presente Código, siempre que sean de aplicación en Mayotte.
Capítulo VI La Antártida Artículo L656-1
Artículo L656-1 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 2 Diario Oficial de 16 de abril de 2003)
Lo dispuesto en los artículos L.711-1 a L.713-9 será de aplicación en Mayotte.
LIBRO VII Protección del medio ambiente de la Antártida Artículos L711-1 a
L713-9 Título Único Aplicación del Protocolo al Tratado Antártico sobre protección del medio
ambiente, firmado en Madrid el 4 de octubre de 1991 Artículos L711-1 a L713-9
Capítulo I Disposiciones comunes Artículos L711-1 a
L711-4
Artículo L711-1 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
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CÓDIGO DE MEDIO AMBIENTE Para la aplicación de las disposiciones del presente título, la Antártida se entenderá como la zona definida en el
artículo 6 del Tratado Antártico firmado en Washington el 1 de diciembre de 1959, es decir la región situada al sur de los 60º de latitud Sur, incluidas todas las barreras de hielo.
Artículo L711-2 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
I. - La organización y dirección de las actividades en la Antártida tendrán en cuenta, con arreglo a las condiciones establecidas en el presente título, la protección del medio ambiente y ecosistemas asociados y dependientes, así como también la protección de la Antártida como reserva natural mundial, dedicada a la paz y a la ciencia y a la investigación científica.
II. - Estas actividades estarán sujetas a declaración previa o a autorización en las condiciones establecidas en el capítulo II, con excepción de:
- las actividades de pesca que se regirán por la Convención sobre la Conservación de los Recursos Vivos Marinos Antárticos, firmada en Camberra el 20 de mayo de 1980;
- el ejercicio de la libertad de navegación y de la libertad de sobrevuelo en alta mar de conformidad con el derecho internacional;
- las actividades autorizadas por otra parte en el Protocolo de Madrid; - las actividades ejercidas por buques y aeronaves del Estado francés o explotados por éste en el marco del
ejercicio de sus funciones de policía y de defensa nacional.
Artículo L711-3 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
Estarán sujetas a las disposiciones del presente título: a) Las personas, cualquiera que sea su nacionalidad, que ejercieran una actividad en el distrito de Tierra Adelia
dependiente de la Administración del territorio de las Tierras australes y antárticas francesas, así como de cualquier buque o aeronave utilizado para este fin;
b) Las personas físicas de nacionalidad francesa y las personas jurídicas, constituidas de conformidad con la legislación francesa, que organizaran actividades en las otras regiones de la Antártida o que participaran en las mismas, así como los buques que enarbolaran pabellón francés y las aeronaves matriculadas en Francia que se utilizaran para dicha actividad;
c) Las personas, cualquiera que sea su nacionalidad, que organizaran en el territorio francés o a partir del mismo actividades que se desarrollaran en cualquier zona de la Antártida, o que participaran en las mismas.
Artículo L711-4 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
Ninguna disposición del presente título afectará a las inmunidades previstas por el derecho internacional de las que gocen los buques de guerra y los buques pertenecientes a Estados extranjeros utilizados para fines no comerciales.
Capítulo II Declaración y autorización Artículos L712-1 a
L712-5
Artículo L712-1 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
I. - Las actividades que causaran un impacto ambiental en la Antártida como mínimo menor o transitorio, en el sentido del artículo 8 del Protocolo de Madrid, estarán sujetas a autorización.
II. - Las demás actividades estarán sujetas a declaración previa.
Artículo L712-2 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
La concesión de una autorización estará supeditada a la realización previa de una evaluación de impacto ambiental de la actividad de que se tratara.
Sin perjuicio del artículo L.713-4, la autorización sólo podrá ser concedida si de los resultados de la evaluación de impacto ambiental se dedujera que la actividad es compatible con la conservación del medio ambiente de la Antártida.
Artículo L712-3 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
La autorización podrá ir acompañada, si fuere necesario, de disposiciones relativas, especialmente a: - las zonas geográficas afectadas; - el período durante el cual se desarrollen las actividades; - el material utilizado, en particular a las condiciones de utilización de los materiales radiactivos con fines
científicos; - los equipamientos y planes de preparación para las situaciones de emergencia; - al método de gestión de los residuos.
Artículo L712-4 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
Asimismo, el cese de la actividad de una instalación estará sujeto a autorización.
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CÓDIGO DE MEDIO AMBIENTE Artículo L712-5 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
Un decreto adoptado en Conseil d'Etat establecerá las condiciones de aplicación del presente capítulo Dicho decreto determinará, especialmente, las autoridades que fueran competentes para la concesión de las autorizaciones, las actividades contempladas en el punto II del artículo L.712-1, el contenido y las condiciones de aplicación de la evaluación previa de impacto ambiental, el procedimiento aplicable a las declaraciones y a las solicitudes de autorización y el régimen aplicable a las instalaciones existentes.
Capítulo III Controles y sanciones Artículos L713-1 a
L713-9
Sección I Controles y sanciones administrativas Artículos L713-1 a
L713-4
Artículo L713-1 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
Una actividad sujeta a declaración podrá ser suspendida, interrumpida o sometida a normas especiales siempre que se considere que causa en el medio ambiente perjuicios más graves que los que se hubieran identificado en el momento de su declaración, o fueran de naturaleza diferente. Salvo en caso de urgencia, se deberá solicitar previamente al declarante que presente sus alegaciones.
Artículo L713-2 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
Una autorización podrá ser suspendida, cancelada o modificada siempre que se considere que la actividad autorizada causa en el medio ambiente perjuicios más graves que los que se hubieran identificado en el momento de su concesión. Salvo en caso de urgencia, se deberá solicitar previamente al titular de la autorización que presente sus alegaciones.
Artículo L713-3 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
La autoridad administrativa podrá requerir a toda persona responsable de una actividad que hubiera sido objeto de declaración o autorización en aplicación del capítulo II, para que adapte las condiciones de ejercicio de la misma a los términos de la declaración o de la autorización.
Transcurrido el plazo fijado en el requerimiento sin haberse cumplido lo ordenado, la autoridad administrativa podrá aplicar lo dispuesto en los artículos L.713-1 y L.713-2.
Artículo L713-4 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
La autoridad administrativa podrá dirigir un apercibimiento a toda persona de la que se tuviera constancia de que ha llevado a cabo actividades incompatibles con el Protocolo de Madrid y el presente título. Se deberá solicitar previamente a dicha persona que presente sus alegaciones. Desde el momento en que se hubiera enviado un apercibimiento, cualquier autorización sería denegada por este motivo durante un período de cinco años.
Sección II Sanciones penales Artículos L713-5 a
L713-9
Artículo L713-5 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
Las infracciones a lo dispuesto en el presente título cometidas por las personas mencionadas en el artículo L.711-3, serán sancionadas de la manera siguiente:
1° El que organizare o participare en una actividad que no hubiera sido objeto de la autorización contemplada en el punto I del artículo L.712-1 o no observare las condiciones de esta autorización, será castigado con la pena de un año de prisión y una multa de 75.000 euros;
2º Será castigado con la pena de dos años de prisión y una multa de 30.000 euros: - el que realizare en la Antártida una actividad de prospección o de explotación de los recursos minerales,
exceptuando las actividades llevadas a cabo para satisfacer las exigencias de las investigaciones científicas, dentro de los límites de la autorización concedida a estos efectos;
- el que comercializare con los materiales procedentes de una actividad ilícita de prospección o de explotación de recursos minerales en la Antártida;
3º Será castigado con la pena de dos años de prisión y una multa de 75.000 euros el que introdujere o hiciere eliminar en la Antártida residuos radiactivos.
4º Las personas jurídicas podrán ser declaradas penalmente responsables en las condiciones previstas en el artículo 121-2 del Código Penal de las infracciones definidas en el presente título. Podrán ser sancionadas con multa, en las condiciones previstas en el artículo 131-38 del mismo Código;
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CÓDIGO DE MEDIO AMBIENTE 5º Los materiales que hubieran servido o hubieran sido destinados para cometer la infracción o los materiales que
fueran producto de la misma podrán ser confiscados.
Artículo L713-6 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
Los hechos mencionados en el apartado 1º del artículo L.713-5 no serán castigados penalmente en los casos de emergencia relacionados con el salvamento de vidas humanas, con la seguridad de los buques, aeronaves o equipamientos e instalaciones de gran valor, o con la protección del medio ambiente, en los que fuera imposible solicitar la autorización previa de conformidad con el presente título.
Artículo L713-7 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
Estarán habilitados para investigar y comprobar las infracciones a lo dispuesto en el presente título y en los reglamentos dictados para su aplicación, además de los funcionarios de la policía judicial que actúan de conformidad con las disposiciones del Código de Proceso Penal:
- los agentes de aduanas; - los agentes habilitados para levantar atestados de las infracciones a la legislación en las reservas naturales; - los administradores de asuntos marítimos, los inspectores de asuntos marítimos, los funcionarios de la
organización técnica y administrativa de asuntos marítimos, los controladores de asuntos marítimos y los agentes de vigilancia marítima, los comandantes, los segundos comandantes y los segundos oficiales de buques del Estado, así como también los comandantes de a bordo de las aeronaves del Estado destinados a la vigilancia de las aguas marítimas.
Artículo L713-8 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
Sin perjuicio de las reglas de competencia definidas en el artículo 382 del Código de Proceso Penal y de las disposiciones del artículo L.935-1 del Código de la Organización Judicial, el Tribunal de Grande Instance de París será competente para conocer y juzgar las infracciones a las disposiciones del presente título y de los reglamentos dictados para su aplicación que hubieran sido cometidas en la Antártida, fuera del distrito de Tierra Adelia, dependiente de las Tierras australes y antárticas francesas.
Artículo L713-9 (introducido por la Ley n° 2003-347 de 15 de abril de 2003 art. 1 Diario Oficial de 16 de abril de 2003)
Un decreto adoptado en Conseil d'Etat establecerá las condiciones de aplicación del presente capítulo.
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