Inadmissibility of a direct appeal against a press release announcing a freeze on exemptions in the villa zone, for lack of a normative act or attackable administrative ordinance

Facts

The appellant, [A. SA] , a company engaged in architecture, IT and real estate development, challenges a press release of 28 November 2019 from the Department of Territory (DT) of the Republic and Canton of Geneva, entitled "Zone villas: gel des dérogations concernant la densité" (Villa zone: freeze on density exemptions). The press release announces that the DT will no longer grant exemptions within the meaning of art. 59 al. 4 LCI for densification projects in the villa zone, until a densification strategy is completed (updating of the municipal master plans, cantonal-municipal working group, updating of cantonal master plan sheets A03 and A04).

The appellant brought proceedings before the Constitutional Chamber of the Geneva Court of Justice, characterising the press release as an interpretive administrative ordinance and alleging violation of art. 59 al. 4 LCI, of the principles of parallelism of forms, proportionality and good faith, and of economic freedom. In parallel, it directly lodged a public law appeal with the Federal Supreme Court (case 1C_676/2019), seeking annulment of the press release and, in the alternative, a transitional regime for projects filed until 30 January 2020. That procedure was suspended pending the outcome of the cantonal appeal.

By judgment of 19 June 2020, the Constitutional Chamber declared the cantonal appeal inadmissible, holding that the act was not an administrative ordinance addressed to State services but a mere communication about a change of practice, and that refusals of exemption could be challenged through the ordinary channels. The appellant then appealed to the Federal Supreme Court against that judgment (case 1C_454/2020), seeking its annulment and, in the alternative, remittal to the Constitutional Chamber.

The Conseil d'Etat contends that the appeal is inadmissible or, in the alternative, should be dismissed. The appellant argues in particular that the Constitutional Chamber disregarded a supplementary submission of 15 May 2020. The DT announced the end of the freeze on 30 June 2020 (or 20 June 2020 according to the judgment), and a legislative amendment entered into force on 28 November 2020.

Main question: whether the press release constitutes a cantonal normative act open to challenge by way of public law appeal (art. 82 let. b FSCA), in particular as an administrative ordinance with external effects, and whether the cantonal judgment of inadmissibility violates the right to be heard or the prohibition of arbitrariness?

Considerations

As the two appeals were lodged in the same context by the same party and raise similar questions, the Federal Supreme Court joins them (art. 71 FSCA and art. 24 FCPA). It leaves open the appellant's standing and its current interest, given the lifting of the freeze and the legislative amendment. The appeal against a cantonal judgment of inadmissibility is admissible, although the appellant may only request remittal of the case to the Constitutional Chamber (ATF 143 I 344 consid. 4).

Under art. 82 let. b FSCA, only cantonal normative acts, namely general and abstract acts affecting the legal situation of private persons, are open to abstract review. Administrative ordinances, intended for the functioning of the administration and aimed at uniform application of the law, are in principle not normative acts. They may exceptionally be challenged only if they produce external effects and if their application cannot take the form of an attackable formal decision in an effective manner (ATF 136 II 415 consid. 1.1; 128 I 167 consid. 4.3).

In this case, the press release is not addressed to subordinate services but announces to the public a change of practice decided by the DT itself, which is competent to grant the exemptions. It therefore does not resemble an administrative ordinance in the strict sense. The Federal Supreme Court nevertheless leaves the question open, as the second condition is in any event not met.

Indeed, any refusal of exemption 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 of the Court of Justice (art. 149 LCI), in case of refusal or delay (art. 4 al. 4 AniWA/GE), and ultimately to the Federal Supreme Court. Administrators thus have immediate and effective legal protection. It is not decisive that the appellant, a service provider, lacks standing to appeal: a principal who is the addressee of a refusal decision could bring proceedings. The direct appeal against the press release (1C_676/2019) is therefore inadmissible.

As regards the complaint of violation of the right to be heard (1C_454/2020), the Federal Supreme Court notes that the cantonal judgment is manifestly inaccurate in so far as it…