Admissibility of an abstract appeal against a press release announcing the freeze of derogations in the villa zone: notion of administrative ordinance and cantonal normative act

Facts

The appellant, [A. SA] , a company whose purpose is the carrying out of architectural and IT work as well as real estate activities, challenges a press release of the cantonal Department of Territory (DT) of the Republic and Canton of Geneva, published on 28 November 2019 on the State's website, entitled "Villa zone: freeze on derogations concerning density". This press release announces that the DT will no longer grant derogations for densification projects in the villa zone within the meaning of art. 59 para. 4 LCI, until completion of a communal densification strategy (update of the communal master plans, canton-communes working group, update of sheets A03 and A04 of the cantonal master plan).

The appellant brought an action before the Constitutional Chamber of the Geneva Court of Justice, considering that the press release was an interpretative administrative ordinance violating art. 59 para. 4 LCI, the principles of parallelism of forms, proportionality and good faith, as well as economic freedom.

By judgment of 19 June 2020, the Constitutional Chamber declared the appeal inadmissible: the press release was a simple information on a change of practice, not intended for State departments, and refusals of derogation could be challenged through the ordinary channels; moreover, the Constitutional Chamber only hears cantonal normative acts.

In parallel, the appellant directly filed a public law appeal with the Federal Supreme Court against the press release (case 1C_676/2019, proceedings suspended then resumed), and an appeal against the cantonal judgment (case 1C_454/2020), alleging a violation of the right to be heard (failure to take into account a submission of 15 May 2020) and arbitrariness in the application of art. 130B para. 1 let. a FJA/GE. The Cantonal Council (Conseil d'Etat) concludes to inadmissibility, alternatively to dismissal. The cases were joined.

The Federal Supreme Court, First Public Law Court, composed of Federal Judges Kneubühler (presiding), Jametti and Merz, with Registrar Mr Kurz, rendered its judgment on 23 March 2021.

Considerations

The Federal Supreme Court joins the two cases, which concern the same context and similar questions. The question of the nature of the press release, namely whether it is a normative act within the meaning of art. 82 let. b FSCA, is decisive for the admissibility of the first appeal and the merits of the second. The Court leaves open the standing and current interest of the appellant, given the lifting of the freeze announced by the DT and the legislative amendment that entered into force on 28 November 2020.

A normative act is a general and abstract act affecting the legal situation of private persons or regulating the organisation of authorities. Administrative ordinances, intended for the internal functioning of the administration and aimed at uniform application of the law or the exercise of discretionary power, are not normative acts. They may exceptionally be challenged only if they produce external effects and if their application cannot result in a formal decision that can be effectively challenged by the citizen invoking his fundamental rights.

The Federal Supreme Court notes that the press release is not addressed to subordinate services, the DT itself being competent to grant derogations; it is rather information on a change of practice already decided. The question may nevertheless remain open, because the second condition is manifestly not met: a refusal of derogation based on the new practice may be the subject of an appeal to the Administrative Court of First Instance (art. 145 LCI), then to the Administrative Chamber (art. 149 LCI), and in case of refusal or delay in ruling under art. 4 para. 4 AniWA, which ensures immediate and effective legal protection up to the Federal Supreme Court. The fact that the appellant, a service provider, lacks standing to appeal is not decisive, as a principal may act. The direct appeal against the press release (1C_676/2019) is therefore inadmissible.

As regards the appeal against the cantonal judgment (1C_454/2020), the Federal Supreme Court finds that the statement that the appellant did not file a reply is manifestly inaccurate, the submission of 15 May 2020 having been transmitted to the…